1. There is no condition in the permit requiring payment of a contribution for public open space. This issue was not raised at the Tribunal hearing. In the Tribunal's decision, Member Terrill adopted the following description of the proposal:

As stated the Bungalook Creek reserve is to be vested in Melbourne Water. It contains almost 50% of the total site and is to be retained in its natural state. It abuts a majority of the lots, and acts as a sizeable passive open space area.

1. The permit contains conditions requiring landscaping, and pedestrian access to Bayswater Road across the existing bridge. Landscaping has been carried out by the applicant to a very high standard. The Bungalook Creek, which was formerly weed choked and full of rubbish, has been cleaned out, rock beaching now lines the creek and planting has been provided along its length within the subject land. A pedestrian pathway has been provided and a most attractive new bridge constructed with wrought iron railings and stone end piers and walls. The applicant provided evidence demonstrating that the cost of works on the creek and open space amounted to $172,450 dollars.

1. The applicant, Hassta, purchased the land in October 2004 with the planning permit issued. Due diligence was undertaken, the permit was assessed and the cost of the works required to effect the subdivision were considered. No monetary public open space contributions were identified. The plan of subdivision was certified on 18 October 2005. By letter dated 18 October 2005, the council confirmed that the plan of subdivision was certified. It stated that a statement of compliance would be issued when certain requirements contained in the planning permit conditions were met. No mention was made of any public open space contribution. The certified plan clearly states that a requirement for public open space under section 18 of the Subdivision Act 1988 "has not been made".
2. The council has now resiled from its letter of 18 October 2005 and states that it will only issue a statement of compliance if it is paid the sum of $77,500 dollars as a contribution for public open space. Hassta was first alerted to this "requirement" by letter from council dated 18 November 2005 to its consultants, which stated:

I refer to the above application for subdivision and I wish to advise that Council hereby makes a requirement for the payment of a 5% contribution for public open space pursuant to Clause 52.01 of the Maroondah Planning Scheme.

Unfortunately, due to an apparent oversight by all parties involved in the issue of a Planning Permit (including VCAT), no "reminder" condition was included in the permit. However, as you are no doubt aware, Clause 52.01 of the scheme states 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 this clause..." (ie.5%). This is a mandatory requirement of the Planning Scheme whether included as a permit condition or not, and therefore must be satisfied prior to the issue of a Statement of Compliance for the subdivision.

1. Clause 52.01 of the Maroondah Planning Scheme provides as follows:

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 this clause (being a percentage of the land intended to be used for residential, industrial or commercial purposes, or a percentage of the site value of such land, or a combination of both). If no amount is specified, a contribution for public open space may still be required under Section 18 of the Subdivision Act 1988.

[the balance of clause 52.01 sets out exemptions from a public open space requirement.]

1. The schedule to clause 52.01 provides that for all subdivisions the amount of contribution for public open space is 5%.
2. Section 18 of the Subdivision Act 1988 provides that a council may require public open space. Section 18(1) provides as follows:

(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 -

(a) set aside on the plan, for public open space, in a location satisfactory to the Council, a percentage of all of the land in the subdivision intended to be used for residential, industrial or commercial purposes, being a percentage set by the Council not exceeding 5 per cent; or

(b) pay or agree to pay to the Council a percentage of the site value of all of the land in the subdivision intended to be used for residential, industrial or commercial purposes, being a percentage set by the Council not exceeding 5 per cent; or

(c) do a combination of (a) and (b) so that the total of the percentages required under (a) and (b) does not exceed 5 per cent of the site value of all the land in the subdivision.

1. 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 more open space having regard to various matters that are set out in the section.
2. Section 18(1B) deals with when the amount must be paid if a council requires an applicant to pay or agree to pay an amount under section 18(1).[3] There are various other provisions in section 18 dealing with public open space requirements, including exemptions, but they are not relevant in the present case.
3. Section 18 of the Subdivision Act 1988 acts as a default provision in respect of public open space contributions. 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 make a requirement for public open space in respect of a plan of subdivision by requiring land to be set aside for public open space; or a payment of a percentage of the site value; or a combination but not exceeding 5% of the area of the site value.
4. The law relating to contributions for public open space has evolved over time.[4] There is a strong interrelationship between section 18 of the Subdivision Act and clause 5201 of the planning scheme, which reflects the interrelationship between the Subdivision Act and the Planning and Environment Act. The Subdivision Act 1988 was drafted in conjunction with the Planning and Environment Act 1987, although they were enacted separately. As Justice Morris said in Hann v Warrnambool CC[5]:

[13] ... 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.

1. It is important to be mindful of this relationship and the overall objectives of each Act when interpreting their specific provisions. The processes which each Act establishes, especially in connection with planning permits and the subdivision of land, are complex. The smooth operation of these processes and the need for certainty attending them have significant cost implications for the whole development industry, not just individual applicants. Therefore, in approaching the interpretation of provisions, I consider that a purposive approach is necessary that will facilitate the smooth and equitable operation of the system in accordance with the intent of the legislation. Of course, this does not mean that clear provisions of either Act can be ignored because they may be inconvenient. But where there are ambiguities or the statutory provisions are silent on a particular matter, then a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) should be preferred to a construction that would not promote that purpose or object.[6]
2. This approach is particularly pertinent in the context of planning where the Planning and Environment Act 1987 sets out the objectives of planning in Victoria[7] and the objectives of the planning framework established by the Act[8]. There would be little point in including such objectives if it was not Parliament's intent that they be used to guide decision making and the interpretation of the Act and planning schemes.
3. Thus in considering whether it was open to the council to make a valid demand for payment of a contribution for public open space under the planning scheme when there is no condition in the permit requiring payment and land suitable for public open space has been set aside on the plan of subdivision, it is important to step back and examine the statutory context for public open space contributions as a whole and the legislative intention underlying that context.

1. A council wears various hats in the subdivision process. It acts as the council of the municipal district[9] in respect of most things it does under the Subdivision Act 1988. Section 18(1) is an exception where it specifies that the council is acting as a responsible authority under the Planning and Environment Act 1987[10]. Thus to require a public open space contribution under section 18 of the Subdivision Act 1988, the council must be acting in its role as a responsible authority, not in its role as the council of the municipal district.
2. In my view, this requirement to be acting as a responsible authority has implications for the timing of making a requirement for a public open space contribution under section 18 and also for the context in which that requirement may be made. To appreciate those implications, it is relevant to look at the powers of the responsible authorities under the Planning and Environment Act 1987.
3. Not everything a council does or can do under the Planning and Environment Act 1987 is in its capacity as a responsible authority. A council can wear different hats under the Planning and Environment Act 1987 just as it can under the Subdivision Act 1988. It may be a planning authority responsible for the preparation and amendment of planning schemes. It may be a responsible authority. Alternatively, it may be a collecting agency or a development agency in the context of administering development contribution plans.[11]
4. In respect of responsible authorities, the Planning and Environment Act 1987 sets out a comprehensive code of duties, responsibilities and powers vesting in them. One of the most important aspects of this code is the power to issue planning permits. When the Planning and Environment Act was enacted in 1987, one of its hallmarks was that planning permits would represent a "one stop shop" for all conditions applicable to the use and development of land. They would include conditions required by the council (as responsible authority) and by all referral authorities.[12] The introduction of referral authorities was an innovation which contrasted to the previous state of affairs when a developer might need to obtain a range of permissions from different authorities, all requiring their own processes and not always reflecting an integrated approach to planning for the land or area in question. Hence the first objective of the planning framework established by the Act[13] is:

(a) to ensure sound, strategic planning and co-ordinated action at State, regional and municipal levels;

1. Perhaps most significantly in terms of the role that planning permits are intended to play in the planning framework established by the Planning and Environment Act 1987, is the objective set out in section 4(2)(f):

(f) to provide for a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;

1. The single authority for issuing planning permits is the relevant responsible authority under the Act. Part 4 Division 1 of the Act sets out the procedures governing permits. Division 1A deals with amendment of permits by responsible authorities. Part 6 deals with enforcement and legal proceedings. Apart from some administrative provisions elsewhere in the Act dealing with matters such as agreements and planning certificates, these provisions represent the ambit of a responsible authority's power under the Act.
2. There are two statutory provisions under which council may require a public open space contribution - section 18 of the Subdivision Act 1988 and clause 52.01 of the planning scheme . However, there is nothing specific in the Planning and Environment Act 1987 which provides a mechanism for a responsible authority to make a requirement for a public open space contribution that lies outside the framework of a planning permit. It is important therefore to determine the mechanisms by which such requirements may be made. Can they only be made within the context of a planning permit or can they be made by some other means?

MECHANISMS FOR REQUIRING PUBLIC OPEN SPACE UNDER THE SUBDIVISION ACT

1. Section 18 of the Subdivision Act 1988 provides that the council must be acting as a responsible authority under the Planning and Environment Act 1987 when it requires the applicant to set aside land in the plan of subdivision for open space or to pay or agree to pay a percentage of site value (or a combination).
2. In the absence of a specific, alternative mechanism being identified in the Planning and Environment Act 1987 to require public open space, the logical mechanism for requiring it is through the planning permit process. The planning permit provides the means for setting aside land on the plan of subdivision for open space or specifying by way of a condition the percentage of site value to be paid. Importantly, the planning permit process provides a means of review in the event of a dispute between the applicant and the responsible authority as to how the public open space contribution is to be made or if an exemption applies.
3. The ability to review decisions of responsible authorities is a further important objective of the planning framework established by the Planning and Environment Act 1987.[14] The Act provides comprehensive opportunities to review virtually all decisions that responsible authorities must make in carrying out their duties and exercising their responsibilities, particularly in respect of the planning permit process.
4. Having regard to the overall scheme of the Planning and Environment Act 1987 and the planning framework established by it, there is no other suitable opportunity for making a public open space requirement under section 18 of the Subdivision Act 1988 other than at the time a planning permit is granted. In this respect, it should be noted that a planning permit is required for all subdivision in all zones in all planning schemes. It is also relevant to note that one of the decision guidelines in clause 62.02, which must be considered in respect of all applications for subdivisions is:
   • The provision and location of reserves for public open space and other community facilities.
5. A requirement for public open space under section 18(1) of the Subdivision Act 1988 will require a decision to be made by the council. That decision will determine:
   • whether or not to require a public open space contribution having regard to the matters set out in section 18(1A);
   • if so, whether it should be provided by way of land, money or a combination of both;
   • what percentage is required of land or site value (so long as it is not greater than 5%); and
   • whether any exemptions apply.
6. In my view, the time when this decision must be made and the mechanism for making the requirement under section 18(1) is when a planning permit for the subdivision is granted. The council will be acting as a responsible authority when a permit is granted (which satisfies the requirements of section 18(1) of the Subdivision Act 1988); the timing accords with the purpose and objective of the Planning and Environment Act 1987 regarding the role of planning permits as a "one stop shop" and there is no other opportunity provided under the Planning and Environment Act 1987 which provides appropriate opportunities for review of the matters about which a decision is required.
7. The making of a requirement and its timing should be distinguished from the time when an applicant must pay an amount required for public open space, which is set out in section 18(1B), or the provision of public open space in the case of a staged subdivision, which is dealt with in section 18(2). There is a distinction is between a requirement for public open space and its provision. The requirement is subject to review through the review processes applicable to planning permits under the Planning and Environment Act 1987. Dispute resolution mechanisms relating to the provision of public open space are to be found in the Subdivision Act 1988.[15]

MECHANISMS FOR REQUIRING PUBLIC OPEN SPACE UNDER THE PLANNING SCHEME

1. Section 18(1) of the Subdivision Act 1988 applies only if a requirement for public open space is not specified in the planning scheme. The most common way in which a public open space requirement will be specified in the planning scheme is in clause 52.01 and its schedule, but it is not the only way. For example, public open space may also be required by a development contributions plan under a Development Contributions Plan Overlay.
2. In the case of the Maroondah Planning Scheme, there is a requirement in the schedule to clause 52.01 for a public open space contribution of 5%. Whilst the percentage is specified, the council (as responsible authority) will still need to make a decision about the requirement, in terms of whether it is to be land set aside on the plan of subdivision, or money, or a combination of both. It will also be necessary to decide if any of the exemptions apply.
3. There is no mechanism specifically provided in the planning scheme for making this decision. As I have found with respect to public open space requirements under the Subdivision Act, logically the time when the decision should be made is at the time when a planning permit for subdivision is granted. At that time the land would either be shown set aside on the subdivision plan or a condition to pay the public open space contribution would be included in the permit. This decision would be subject to review in the context of the various review rights applicable to permits under the Planning and Environment Act 1987.

Can a requirement be made outside the framework of a planning permit?

1. The applicant in the present case thought the decision about public open space had been made when land was set aside on the plan of subdivision and no condition requiring payment was included in the permit. The land is referred to in the Tribunal decision granting the permit[16] as a drainage reserve and is shown on the certified plan of subdivision as a reserve for the use of Melbourne Water Corporation, rather than as a public open space reserve. In fact, a large percentage of the land has been landscaped and developed for passive open space and I find it will be used for this purpose.
2. I will deal later with the implications of the name of the reserve. At this point, I will deal with the council's submission that it may validly make a requirement for payment of 5% of the site value of the land for public open space outside the framework of the planning permit.
3. The council says that its letter of 18 November 2005 and a further letter on 28 November 2005 formally requiring "cash in lieu of land for public open space" in the sum of $77,500 dollars, is simply the means of conveying the demand for open space payment. It is not the imposition of a requirement because the requirement is already in the planning scheme. The council says that the demand for open space payment can be validly conveyed by a letter such as this and does not need to be conveyed by a planning permit condition. It relies upon the decision in Tucker v Mornington Peninsula SC No 3[17] in support of this proposition. In that case, Senior Member Byard said:

[14] Section 18 refers to the council "acting as a responsible authority or a referral authority under the Planning and Environment Act 1987". However it does not specify that the requirement has to be made by means of a condition in a planning permit or that the requirement will be dependant upon the need for a planning permit. It has been common for councils to make the requirement by means of such a condition under the SD Act and, as I recall it, under the LG Act. Nevertheless, my recollection is also that such requirements were sometimes made by other means, for example by means of a letter, particularly under the LG Act.

[15] A somewhat similar situation now appears in relation to cl.52.01 of the planning scheme. ...

[16] The ... provision does not limit the requirement to subdivisions where a permit is required. It applies where an amount is specified in the schedule to the clause. These schedules can vary from planning scheme to planning scheme. Where no amount is specified then s.18 applies in default. ...

[27] ... [I]f the requirement of a contribution applies it is not dependant upon a permit being needed for the subdivision and it is not dependant on there being a condition in the permit requiring a contribution. The planning scheme is part of the law of Victoria. Clause 52.01 says that a person who proposes to subdivide land "must" make a contribution for public open space. That is the law whatever a permit or a permit condition might say on the topic.

1. Senior Member Byard then goes on to acknowledge that, the responsible authority nevertheless has some limited discretion to require cash rather than land (or a combination of land and cash) and the question of exemptions must also be considered. Tucker's case ultimately turned upon an interpretation of the exemption provision in clause 52.01 relating to a subdivision of land into two lots and whether it was unlikely that each lot would be further subdivided, together with the wording of the particular conditions in that case. The Tribunal decided to delete the condition in the permit in that case which required payment of a public open space contribution on the following basis:

[48] As to condition 6, I think the whole notion of there being a public open space contribution "for lot 1", rather than in relation to the whole of the land being subdivided, is contrary to cl.52.01 and thus to the law in Victoria. This seems to me to be a good reason to uphold the review and to delete condition 6, although that would not, in my opinion, remove the obligation created by cl.52.01 to pay a contribution of 5% of the site value of the whole of the land. The only merit in leaving the condition would be that removal might make it appear that there was no obligation. Should a condition appear, not because it operates as a condition but merely as a note or reminder that the obligations arise under the provisions of the planning scheme but independently of the condition? I doubt that it should.

1. I take no issue with the merits of the Tribunal's decision in Tucker's case, but I do not agree with the contention that it would be acceptable to remove a condition requiring payment of a public open space contribution because the obligation would remain under the Planning and Environment Act 1987 notwithstanding deletion of the condition.[18] I disagree with the proposition that a condition should not appear in a permit "merely as a note or reminder that the obligations arise under the provisions of the planning scheme".
2. If such a proposition were to be accepted, it means that a planning permit could be granted without containing all the requirements applying to the particular use or development of land which the permit allows. In my view, this would be contrary to the intended role of the planning permit contemplated under the planning framework established by the Planning and Environment Act 1987, which is not just to grant permission but to document as a "one stop shop" all the requirements of referral authorities, the council and other obligations arising under the planning scheme in respect of that permission.
3. Section 62(1)(a) of the Act provides that a responsible authority must include in a permit any condition which the planning scheme or relevant referral authority requires to be included. There would be no need for section 62(1)(a) if the logic of Tucker's case was to prevail (i.e. that a condition should not be included in a permit where an obligation arises under the provisions of the planning scheme). The existence of section 62(1)(a) evidences a clear intention to the contrary. It is strong support for the principle that the planning permit is intended by the Act to be a "one stop shop" containing all the requirements and obligations applicable to the use or development allowed. It means that anyone relying upon the permit in the future need not look beyond the permit to ascertain what additional conditions or requirements might also apply under the planning scheme.[19]
4. Clause 52.01 does not specifically require a condition to be included in a permit[20]. Such a condition would be inappropriate because the responsible authority has a discretion about whether to require land or cash.[21] If land is required, then it will be shown on the plan of subdivision. It will not need to be actioned by a permit condition. A condition will only be relevant when the responsible authority decides it wants a cash payment for the public open space contribution.

46 I find that if the responsible authority decides to require payment of a public open space contribution, then that requirement falls into the category of a condition referred to in section 62(1)(a) and must be included as a condition in the planning permit.[22]

1. To find otherwise, I consider, would be contrary to the spirit and intent of the Planning and Environment Act and the objective of the planning framework established by the Act set out in section 4(2)(f). It would also deny a permit applicant the opportunity to review those aspects of the responsible authority's decision relating to a public open space contribution under clause 52.01 that must be made, namely whether to require land or cash; and whether any of the specified exemptions apply. It would be most unfair if applicants were to be denied an opportunity to review such crucial matters on their merits.[23] This would be equally contrary to the objectives of the planning framework and the entire scheme of review provisions established under the Act.

Does section 62(6) PEA preclude a condition for public open space in a permit?

1. Hand v Warrnambool CC[24] involved a decision on a point of law by Justice Morris about the validity of a condition on a permit for development of independent living units for elderly residents to pay an open space contribution. The case decided that there is no power to impose a condition on a planning permit for the construction of multiple dwellings requiring a payment of money to a council to be used for the provision of public open space when there is no subdivision. However, in the course of his decision, Justice Morris considered the operation of section 62(6) of the Planning and Environment Act 1987 in the context of a requirement made under section 18(1) of the Subdivision Act 1988. In doing so, he said:

[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. 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.

1. The implication of this interpretation is that section 62(6) would preclude a condition being placed on a planning permit that was otherwise authorised under section 18(1) of the Subdivision Act 1988. It would not preclude the council than making such a requirement, but it could not do so using the mechanism of a condition in the planning permit. The council would presumably have to tell the developer in some other way (for example, by letter) and any dispute would need to be determined under the Subdivision Act 1988 rather than the Planning and Environment Act 1987.
2. In my view, such an interpretation would seem to render meaningless the words in section 18(1) which refer to the council "acting as a responsible authority". As noted earlier, the council generally acts under the Subdivision Act 1988 in its capacity as the council of a municipality. If the council was intended to act simply as a local government authority under the Subdivision Act 1988 with respect to requirements for public open space, and for any review of such requirements to be under the Subdivision Act provisions, there would be no purpose in stating so explicitly that the council's power to make a requirement under section 18(1) is as a responsible authority under the Planning and Environment Act 1987. I do not consider that interpolating the words into section 18(1) so it reads "when acting as a responsible authority" adds anything to the provision or changes its meaning, as suggested by Justice Morris in Hand's case.
3. Such an interpretation also appears to be at odds with the point made earlier in the case by Justice Morris that the Planning and Environment Act 1987 and the Subdivision Act 1988 must be read together:[25]: a point which was reiterated and relied upon in Fletcher's case.[27]
4. It is not necessary that I explore in detail the findings made in Fletcher's case as they are not relevant to this case.[28] It is relevant to note, however, that a somewhat different view appears to be expressed in Fletcher's case compared to Hand's case with respect to the role of planning permits being a record of all conditions and requirements relevant to a subdivision. Thus in recounting the history and evolution of public open space requirements in Fletcher's case, Justice Morris says:

[18] In October 1989 the Ministry for Planning and Environment published a user guide to the new Subdivision Act. One of the key points made in the guide was that conditions in planning permits should refer to all matters relevant to the subdivision, including open space requirements. The inspiration behind this guideline was that, where subdivision required a planning permit, the planning permit should contain a comprehensive outline of all relevant requirements, even though the conditions might not spell out the requirement in detail. In relation to requirements for open space the user guide stated:

A council may decide to require a greater (or lesser) amount than 5% for an open space requirement but any greater amount must be specified in the local section of the council's planning scheme. An application for an amendment to seek a larger open space requirement would need to be supported with strong policy reasons for the change.

1. In my view, this lends support for the proposition that the integrated scheme established for public open space contributions intends that a requirement for payment of a public open space contribution should be included as a condition in a planning permit, whether the requirement is made under section 18(1) of the Subdivision Act 1988 or arises as a consequence of clause 52.01 of the planning scheme.
2. In light of these considerations, I return to the question of whether section 62(6) of the Planning and Environment Act 1987 precludes a condition requiring payment of a public open space contribution under section 18(1) of the Subdivision Act 1988, as discussed by Justice Morris in Hand's case.

55 I find it strange that given the integral relationship between the Planning and Environment Act 1987 and the Subdivision Act 1988, the requirement, which is specifically authorised under the Subdivision Act 1988, could not be included as a condition in a planning permit because of section 62(6) of the Planning and Environment Act 1987.[29]

1. The intent of sections 62(5) and 62(6), taken together, is to prevent the imposition of conditions requiring the payment of money by way of unauthorised development contributions plans.[30]
2. Clause 52.01 specifically states that if no amount is specified in the schedule, a contribution for public open space may still be required under section 18 of the Subdivision Act 1988. A broad interpretation should be given to this provision which recognises the integrated relationship between the two Acts in respect of public open space. Just as I have characterised a condition requiring payment of a public open space contribution which is specified in the schedule to clause 52.01, as falling within the meaning of section 62(1)(a) as a condition that must be included in a planning permit, so I find that a condition requiring a contribution for public open space under section 18 of the Subdivision Act 1988 is equally a condition which can be characterised as falling within the ambit of section 62(1)(a).
3. On the basis of this characterisation, such conditions do not offend section 62(6) as they fall within the exception of 62(6)(b).
4. Again, this is a case where the provisions of the Act should be interpreted to promote the purpose or objective underlying the Act. I do not consider that section 62(6) should be interpreted in such a way as to frustrate the clear intention of section 4(2)(f) of the Planning and Environment Act 1987 or the specific authority conferred on councils "acting as a responsible authority" to make requirements under section 18(1) of the Subdivision Act 1988, which is recognised in clause 52.01 of the planning scheme. I therefore respectfully disagree with Justice Morris in terms of what he says on this point about section 62(6) in Hand's case.

1. In may respects, it would be desirable if clause 52.01 was worded slightly differently. The addition of a further sentence to the following effect at the end of the first paragraph of the clause would put the application of section 62(1)(a) beyond dispute:

Where a payment is to be made as a contribution for public open space, a permit granted must include a condition specifying the percentage of the site value.

1. In my view, this is what the scheme of the Planning and Environment Act 1987 and the Subdivision Act 1988 contemplates. It is what usually happens in practice. From a practical perspective, it is highly desirable that all conditions and requirements relating to subdivision are included in the permit. Permits attach to land. They need to be certain so they may be relied upon for implementation and enforcement at any time after they are granted without having to seek elsewhere for potential requirements or financial obligations. The disadvantages faced by subsequent owners, such as the applicant in the present case, of relying on a permit, spending money on improving for public open space purposes land which is set a side as a reserve on the plan of subdivision, and then being asked subsequently for a cash contribution for public open space which at the time of purchase the applicant could not have known about, are self evident.
2. Therefore, for all these reasons, I conclude that when a council acting as a responsible authority decides to grant a permit for subdivision and decides to require payment of a contribution for public open space either under section 18(1) of the Subdivision Act 1988 or clause 52.01 of the planning scheme (as distinct from deciding that land should be set aside on the plan of subdivision), a condition must be included in the planning permit to this effect and setting out the percentage of the site value to be paid.
3. In the present case, no such condition was included in the permit. I therefore find that it is not now open for the council to make a demand for payment of a contribution for public open space or to withhold issue of a statement of compliance until the amount is paid.

1. The further issue to determine is whether a reserve "for the use of the Melbourne Water Corporation" means that this is not land for public open space and therefore cannot satisfy the requirement in the planning scheme for a contribution for public open space.
2. I have found as a fact that the land is suitable for public open space and has been developed for this purpose. It is evident from the Tribunal's decision when the permit was granted in the first place that the land was considered as public open space.
3. These days, it is common for land used for drainage purposes to be also used for public open space purposes.[31]
4. In Mutton Nominees v Casey City Council[32], Member Liston noted that there is planning and policy support for regarding drainage reserves as useful public open space. He further said:

[6] The value of linear public open spaces is increasingly recognized, they provide an attractive environment in which important recreational pursuits such as walking, cycling and horse riding can be pursued. The value of this particular area of drainage reserve is reinforced by the fact that it performs a connecting role between open space to the north, and the large retarding basin to the south.

1. The Tribunal faced a similar dilemma in Mutton Nominees to that arising in the present case. The reserve was proposed to vest in Melbourne Water. An open landscaped waterway providing a high level of amenity for nearby residents, habitat for flora and fauna, and which would include a pathway for use by pedestrians, cyclists and equestrians, was proposed to be constructed. The dispute was whether or not all or part of this drainage reserve should be regarded as a contribution to the council for public open space. The Tribunal concluded that the drainage reserve could reasonably be regarded as a public open space and satisfied the area requirement of the scheme. However, in considering the structure of clause 52.01, which requires that a person who proposes to subdivide land must make a contribution "to the council" for public open space, Member Liston concluded that for the clause to be satisfied, the land to be set aside for public open space should be vested in some form in the council.
2. Clause 52.01 certainly requires the contribution be made to the council. Section 18 of the Subdivision Act 1988 is not so explicit. The definition of public open space in the Subdivision Act 1988 is:

public open space means land set aside in a plan or land in a plan zoned or reserved under a planning scheme -

1. There is nothing in this definition that would specifically require the land to be vested in the council. However, the provisions of section 20, which deal with what the council must do with public open space, are predicated on the basis of the land being vested in the council for that purpose.
2. This creates a difficulty in a situation such as Mutton's case and the present case where land set aside as a reserve will be used for a dual purpose, including public open space, but it is not proposed to be vested in the council. In Mutton's case, the Tribunal overcame this problem by including a condition that the proposed drainage reserve vest in the council and include a drainage easement in favour of Melbourne Water. Member Liston noted the reluctance of the council to have the land vested in it because of the cost of maintenance.
3. Possibly for similar reasons, the council does not seek the reserve in the present case to be vested in it. The land has been landscaped and developed to a high standard and the council may therefore be reluctant to assume the cost of maintenance to this standard. However, it seems most unfair for the council to demand an additional $77,500 for public open space when the applicant has set aside nearly 50% of the land in a reserve and paid for works and landscaping to improve it for both public open space and drainage purposes. Because this issue was not raised at the initial Tribunal hearing when the permit was granted, the applicant was denied the opportunity to have the issue of the body in whom the reserve should vest determined on its merits.
4. Whilst ownership of the reserve will be vested in a public authority, as distinct from private ownership, if the reserve is for the use of the Melbourne Water Corporation, it seems from the provisions of clause 52.01 of the planning scheme and the Subdivision Act 1988 that land which is set aside on a plan of subdivision as a contribution for public open space is intended to be vested in the council, not some other public authority. This may now be a deficiency in the legislation due to the increased planning preference to establish linear public open space (as distinct from small, isolated reserves); the trend for linear public open space to be located along waterways; and the dual function that such linear reserves fulfil in terms of drainage and public open space. It would be most unfair for good planning practice and public policy, which favour linear open space and public walkways along waterways, to be frustrated by councils refusing to accept plans that set aside reserves for these purposes as a contribution for public open space either under the Subdivision Act 1988 or planning scheme and instead demand payment of a cash contribution for public open space.
5. Nevertheless, in the present case I must determine whether the requirement for a contribution for public open space as required by clause 52.01 of the planning scheme has been met in the form of a contribution of land. My conclusion is that in order to comply with the requirements of clause 52.01, a contribution of land must be vested in the council.
6. In the present case, I consider that this requirement could be met by vesting the land in the reserve which is in the Residential 1 Zone in the council and leaving the balance of the land in the Urban Floodway Zone to be vested in the Melbourne Water Corporation. The reserve land which is zoned Residential 1 comprises 11.9% of the subject land and hence well exceeds the 5% requirement specified in the schedule to clause 52.01.
7. This may not be an elegant solution to the problem in terms of ultimate ownership and responsibility for what is, in reality, a well integrated combination of public open space and drainage functions. However, it seems to be a necessary outcome in light of the wording of the provisions of the planning scheme and Subdivision Act 1988, and the council's own actions in seeking the further payment of a contribution for public open space when such a generous contribution of land (and works) has already been made for this purpose.

1. The council submitted that this was not a case where I ought to make the declarations which the applicant seeks. It submitted that section 149B is a declaratory relief, it is not a general power of review. This is not a case where the Tribunal should purport to stand in the shoes of the council but one where the Tribunal must determine whether it was reasonably open to the council to make the decision it did. The council characterised that decision as one whether the contribution towards public open space should be way of a percentage of the land or a cash payment (or a combination of both).
2. The effect of my findings are that the time when it was open to the council to make a decision about land or cash was at the time when the planning permit was granted. If the council had wanted a cash contribution, it should have included condition on the permit and it would have then been open to the applicant to seek a review of that condition on its merits. Because no such condition was included, it is not now open to the council to seek a cash contribution in the way that it has. The council has effectively made its decision to require a contribution for open space in the form of land. I am not seeking to review this decision or change it.
3. The further effect of my findings, that a contribution for public open space by way of land must be vested in the council, reveals a potential mistake in the way in which the reserve is shown on the certified plan of subdivision. This mistake is capable of being rectified quite readily by making that part of the reserve which is in the Residential 1 Zone a reserve for public open space that is vested in the council.
4. I do not consider that this would require an amendment of conditions in the planning permit. Condition 8.4 requires:

[8.4] A Drainage Reserve in favour of Melbourne Water Corporation is to be placed over the Bungalook Creek generally as shown on the plan.

The reserve in favour of the Melbourne Water Corporation will cover the land in the Urban Floodway Zone and will meet the requirements of this condition. The change to the endorsed plans under the permit could be amended to change the name of the reserves by way of secondary consent under condition 1.

1. However, I am not called upon in the context of this proceeding to decide exactly how the parties should resolve the question of in whom the reserve (or parts of it) should vest. This is a matter for negotiation by the parties. If they fail to reach agreement, other proceedings may be required.
2. The issues of law and statutory interpretation involved in this case have been complex. I am satisfied that this is a suitable case in which to make declarations and that other procedures were not available that could have satisfactorily resolved the matters in dispute between the parties so effectively. I therefore propose to make declarations (a), (b) and (c) which the applicant seeks. I do not intend to make declaration (d) because it is unnecessary in light of the other declarations. I do not intend to make a declaration regarding the need for a reserve for public open space to be vested in the council, because this was not specifically requested, but my findings on this issue should be relied upon by the parties.

[1] The application was originally made under section 149(1)(b) of the Planning and Environment Act 1987. By order dated 3 August 2007, this was amended to an application for declaration under section 149B of the Act. The application was further amended to include the declarations set out above.

[2] Planning Permit No M/2002/792 issued 21 October 2003; Kuranga Native Nursery Pty Ltd v Maroondah CC [2003] VCAT 1379

[3] Usually this is before the council issues its statement of compliance but may be later if the applicant and the council so agree.

[4] The history of open space contributions has been traced in the following cases: Palenkas v Whitehorse CC [2003] VCAT 2043; Tucker v Mornington Peninsula SC No 3 [2006] VCAT 1780; and Fletcher v Maroondah CC [2006] VCAT 2205

[5] [2004] VCAT 19

[6] See section 35(a) Interpretation of Legislation Act 1984

[7] Section 4(1) Planning and Environment Act 1987

[8] Section 4(2) Planning and Environment Act 1987

[9] Pursuant to section 3(1) of the Subdivision Act 1988; Council means the council of a municipal district in which the land in the plan is located.

[10] Section 18(1) also refers to a council acting as a referral authority under the Planning and Environment Act 1987. I have not addressed the issue of how a council might be acting as a referral authority under the Planning and Environment Act 1987 in the context of making a requirement for a public open space contribution because it is not relevant to this particular case. Instead, I have concentrated on the council acting as a responsible authority. Responsible Authority is defined in section 3(1) of the Subdivision Act 1988 as a responsible authority under the Planning and Environment Act 1987.

[11] See part 3B Planning and Environment Act 1987, in particular section 46Q

[12] See Second Reading Speech, Planning and Environment Bill, Legislative Council 19 November 1986; Parliamentary Debates (Hansard) page 1153

[13] Section 4(2) Planning and Environment Act 1987

[14] Section 4(2)(j) provides:

(j) to provide an accessible process for just and timely review of decisions without unnecessary formality;

[15] See sections 39, 40 & 41

[16] Kuranga Native Nursery Pty Ltd v Maroondah CC [2003] VCAT 1379

[17] [2006] VCAT 1780

[18] Rather than removing the offending condition altogether, a preferable outcome might have been to reword the condition to more properly reflect the obligation arising under the planning scheme.

[19] It also avoids the uncertainties that would arise were the obligations or requirements of the planning scheme changed between the time when the permit is granted and when it is acted on.

[20] This can be contrasted with other provisions in the planning scheme such as the Incorporated Plan Overlay (clause 43.03-1), Development Plan Overlay (clause 43.04-1) and the Development Contributions Plan Overlay (clause 45.06-1)

[21] Unless the schedule specifies otherwise. Interestingly, clause 52.01 refers to a contribution to "the council" for public open space, rather than a contribution to the responsible authority. However, the responsible authority may be some body other than the council, for example the Minister for Planning. It is therefore clearly intended by this wording that contributions for public open space can only be made to the council under the planning scheme, not to other bodies.

[22] This seems to accord with the view expressed by Justice Morris in Fletcher v Maroondah CC [2006] VCAT 2205 where he says in the context of identifying issues emerging from an analysis of provisions concerning public open space contributions:

[23] Second, a planning scheme may specify a requirement for public open space. If such a requirement is specified, it must be complied with; and if it is specified as a condition which must be included on any relevant permit, then, in granting such a permit, the responsible authority must include such a condition. [See section 62(1)(a) of the Planning and Environment Act.]

A reservation which I have regarding this issue as identified by Justice Morris relates to the reference that if a requirement is specified as a condition which must be included on any relevant permit, then the responsible authority must include such a condition. The format of the schedule to clause 52.04 does not allow for this. It requires only that the amount of contribution for public open space be specified.

[23] The only alternative would be in the nature of a judicial review under section 149A or 149B in the form of declarations that no reasonable responsible authority could have made such a decision.

[24] Hand v Warrnambool CC [2004] VCAT 19

[27] [2006] VCAT 2205 at [15], [17] and [18]

[28] In Fletcher's case, Justice Morris specifically disagrees with the finding in Tucker's case that if a public open space requirement is specified in a planning scheme, there is no need to address the question of whether the subdivision generates a need for additional open space as required by section 18(1A) of the Subdivision Act 1988. Fletcher's case decides that considerations in section 18(1A) remain relevant in the interpretation of clause 52.01. Fletcher's case is currently subject to review in the Court of Appeal. However, this is a different issue to the point upon which I disagree with the views expressed in Fletcher's case, which I have discussed previously.

[29] Sections 62(5) and 62(6) of the Planning and Environment Act 1987 provide as follows:

(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 requiring specified works, services or facilities to be provided or paid for in accordance with an agreement under section 173; or

(c) include a condition that specified works, services or facilities that the responsible authority considers necessary to be provided on or to the land or other land as a result of the grant of the permit be -

(iii) provided or paid for partly by the applicant where the remaining cost is to be met by any Minister, public authority or municipal council providing the works, services or facilities.

(6) The responsible authority must not include in a permit a condition requiring a person to pay an amount for or provide works, services or facilities except -

(a) in accordance with subsection (5) or section 46N; or

(b) a condition that a planning scheme requires to be included as referred to in subsection (1)(a); or

(c) a condition that a referral authority requires to be included as referred to in subsection (1)(a).

[30] See Cameron Manor Pty Ltd v Mornington Peninsula SC [2007] VCAT 1822 at [14] - [21]

[31] The continuation of the reserve over the Bungalook Creek on land north of the subject land is shown as a reserve for municipal and drainage purposes.