1 The permit applicant operates a residential complex, that provides independent living units, for elderly residents. It seeks to extend this complex by constructing a new building that will provide an additional fifteen independent living units. The new building will be connected to the existing building and will also provide for communal facilities, such as a lounge/dining area and laundry facilities.

2 It is not proposed to subdivide the new independent living units.

3 The responsible authority decided to grant a permit for the additional independent living units. It also decided to include a condition, as condition 11, as follows:

11 The applicant or owner must pay the responsible authority a sum equivalent to 3% of the site value in lieu of providing public open space. The cost of the valuation must be borne by the owner and the valuation must be undertaken by Council's approved valuer. The payment must be made prior to the use commencing to the satisfaction of the responsible authority.

The imposition of this condition was consistent with a policy set out in clause 22.01-12 of the Warrnambool Planning Scheme, to the effect that at the time of the construction of a medium density development, an open space levy, to the satisfaction of the responsible authority, may be required.

4 Counsel for the permit applicant challenged the validity of this condition. As the member appointed to hear the appeal was not legally qualified, this question was referred to me. I heard representatives of the permit applicant and the responsible authority on 5 September 2003 and indicated shortly thereafter my opinion that the condition was unlawful. I now give my reasons for that ruling.

5 The starting point must be section 62 of the Planning and Environment Act 1987. Section 62(1) provides that, in deciding to grant a permit, the responsible authority must include any condition which the planning scheme, or a relevant referral authority, requires to be included. Furthermore, this provision states that additional conditions should not be included if they conflict with a condition which must be included.

6 Then follows section 62(2), which commences:

the responsible authority may include any other condition that it thinks fit including ....

The various paragraphs which then form part of section 62(2) specify particular types of conditions which may be included in a permit. These include a condition that the owner of the land is to enter into a section 173 agreement and a condition requiring certain things listed in the table to section 24A(1) of the Subdivision Act 1988.

7 The expression any other condition that it thinks fit is a broad one. But it does have limits. It has been held to be confined to conditions which are for a planning purpose (as derived from the Act and the planning scheme) and which are fairly and reasonably related to the application for the planning permit.[1]

8 In 1995, as part of a review of development contributions provisions, the Parliament added subsections (5) and (6) to section 62. These provide:

(5) In deciding to grant a permit, the responsible authority may -

(a) include a condition required to implement an approved development contributions plan; or

(b) include a condition that specified works which the responsible authority considers necessary as a result of the grant of the permit -

(ii) be paid for wholly by the applicant or partly by the applicant where the remaining cost is to be met by any Minister, referral authority, public authority or council providing the works.

(6) 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.

9 There is no approved development contributions plan which is relevant to the present application. Nor could condition 11 be regarded as a condition that specified works be provided or paid for. Hence the condition is not authorised by section 62(5).

10 On the other hand, condition 11 is a condition requiring a person to pay an amount for a facility. Words used in section 62(6) such as "services" and "facilities" are broad.[2] Public open space is a "facility"; it is a thing which is used. It is desirable for those living nearby.

11 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.

12 Mr Rantino, who appeared for the responsible authority, contended that section 62(6) was limited in its operation. He also contended that the broad words of section 62(2) allowed the responsible authority to include condition 11 in the permit. But I see no reason to confine section 62(6). The words of the provision are unequivocal. The words form part of section 62; and, in my opinion, limit not only section 62(5), but also section 62(2)[3].

13 What complicates this case is the interrelationship between the Planning and Environment Act and the Subdivision Act 1988. These two Acts must be read together. Not only do the Acts form part of cognate legislation enacted by the parliament at the same time, but also each Act depends for its operation upon the other.

14 Section 18 (1) of the Subdivision Act provides:

(1) If a requirement for public open space is not specified in the planning scheme, a Council, acting as a responsible authority or a referral authority under the Planning and Environment Act 1987 may require the applicant who proposes to create any additional separately disposable parcel of land by a plan of subdivision to .....[either provide public open space or pay a percentage of land value, not exceeding 5%, to the Council to be used for the provision of public open space].

15 Section 18(1A) provides that the Council may only make a public open space requirement if it considers that, as a result of the subdivision, there will be a need for open space. Various criteria are specified, which are based upon the criteria I articulated in Paul v City of Melbourne (1983) 2 PABR 8.

16 No requirement for public open space is specified in the planning scheme under consideration in the present case. Hence there is no question as to whether or not condition 11 might be justified by section 62(1)(a) of the Planning and Environment Act. However, equally, there is no basis to impose a requirement under section 18(1) of the Subdivision Act as the applicant does not propose to create any additional separately disposable parcel of land by a plan of subdivision.

17 It was suggested that my approach in relation to section 62(6) of the Planning and Environment Act would prevent the imposition of a condition on a subdivision requiring payment of an amount, not exceeding 5% of site value, to be used for public open space. In the absence of a provision in a planning scheme specifying a requirement for public open space or a development contributions plan, this seems to be the position under the Planning and Environment Act.[4] However this does not mean that the Council cannot make the requirement under the Subdivision Act. Further, if there was a dispute about such a requirement, the owner could apply to the Tribunal for the determination of the dispute.

18 Where section 18(1) refers to a Council, acting as a responsible authority, requiring public open space, it might be thought to be inferring that such a path is available under the Planning and Environment Act. However, even if this was the case before the 1995 amendments to the Planning and Environment Act, it can no longer be the case in the light of the clear words used in Section 62(6) of that Act. Rather, in my opinion, the words "acting as a responsible authority" should be taken to mean "when acting as a responsible authority", thereby indicating the time at which a requirement may be made under section 18 of the Subdivision Act.

19 The power to require the provision of public open space (or payment in lieu) can be traced back to Section 569B(8A) of the Local Government Act 1958, which came into force on 1 June 1967. Like the present provision, this requirement could only be imposed upon a subdivision. However, the Local Government Act 1958 also had a provision which allowed for the imposition of a public open space requirement upon the construction of a building which, in the opinion of the Council, is likely to be used and occupied for more than two flats or apartments; see section 569H. This provision was inserted on 27 May 1970, presumably to prevent developers or flats avoiding the payment of a public open space contribution by simply renting the flats and not subdividing them. When the Subdivision Act was passed in 1988, section 569H was replicated in section 21A of the Building Control Act 1981. In turn, this provision operated until the enactment of the Building Act 1991. For some reason, which is not explained, the provision was not continued under that Act. One explanation is that the Parliament simply overlooked the provision. Another explanation, which I prefer, is that Parliament deliberately decided that the provision was no longer appropriate or necessary.

20 I conclude that there is no power to impose a condition on a planning permit for the construction of multiple dwellings requiring the payment of money to a Council to be used for the provision of public open space.

[1] Compare Rosemeier v Greater Geelong City Council (No 1) (1997) 20 AATR 86.

[2] See the discussion in Christian Brothers Vic Pty Ltd v Banyule City Council [2001] VCAT 2120.

[3]This conclusion is consistent with the conclusion of Balmford J in Curry v Melton Shire Council (2000) 7 VPR 109. Indeed, there is a strong case to suggest that section 62(6) also overrides section 62(1)(a) in relation to a condition which a relevant referral authority requires to be included as a condition of a planning permit (as opposed to a requirement under some other legislation): contrast Dennis Projects Pty Ltd v Wyndham City Council (2002) 12 VPR 91, at para [70]. A condition imposed under section 62(1)(a) by a referral authority is subject to review before the tribunal. Given this, it would be odd if a condition required by a referral authority rendered section 62(6) inoperative.

[4] See Eddie Barron Constructions Pty Ltd v Shire of Pakenham (1990) 6 AATR 10, at 40.