In Permit No. P04/537, the decision of the Responsible Authority is affirmed. No change is to be made to Condition 9.

1 These reasons address an Application under Section 80 of the Planning and Environment Act 1987 made by Inland Consultants. The Applicant seeks review of Condition 9 in Permit No. P04/537 issued by the Mildura Rural City Council ("the Council") on 24 December 2004. The contested condition requires a cash contribution of 5% of the value of the land.

2 At the end of the Hearing I gave the Applicant an opportunity to respond to the Mildura Regional Open Space Strategy January 2004 tendered during the course of the Hearing as Mr Costa said that he had sought details of relevant policies prior to the Hearing but they had not been provided to him. A supplementary submission was filed and served by Mr Costa.

3 The review site is located off Eighth Street, between Dyar and Riversdale Avenues. It has an area of approximately 2.41 hectares and is zoned Residential 1 with no Overlays. The land was used for horticulture with one dwelling. The development allowed by Permit No. 04/537 is underway comprising the construction of 52 dwellings and the subdivision of the land into 53 lots including common property. Each dwelling is provided with an area of private open space and there is a centrally located communal area. I was advised by the Applicant that the areas of private open space are generally 30% of each lot. Lot sizes range from 274 to 493 square metres. The approved dwellings would contain either two or three bedrooms.

4 Communal open space is provided in two parts between two sections of 5 metre wide roadway. Both parts are approximately 6 metres wide, with lengths in the order of 25 and 50 metres respectively. The plans show them to comprise planting and several benches. The northern-most portion, closest to the site's entry, is narrower where it abuts a rubbish collection area. This section also has a front entry gazebo serving as the main entry into the property with a waterwall feature and mail boxes. I was advised that communal space would be lit and the landscaping would include mature trees, hedges and grass.

5 The only matter before me is Condition 9 that addresses the public open space contribution associated with the subdivision of the land. I must consider whether a 5% cash contribution based on site value is fair and reasonable. At the Hearing written and oral submissions were presented by the parties. I have considered these in their entirety in addition to the supplementary submission filed with my leave by the Applicant. I find no need to recite the submissions although I do refer to some of the main points next. I inspected the site and locality before and after the Hearing.

6 In the written information provided to the Council following the issue of the Permit, the proponent submitted that 5% was not fair because the area of communal open space set aside represents 1.5% of the site and with a development cost for that area of approximately $55,000, the contribution being made with the land contribution would be $64,000. That compares with a 5% cash contribution that would amount to approximately $30,000.

7 At the Hearing, the Applicant submitted that the proposal provides sufficient open space in accordance with Clauses 55 and 56 of the Scheme and there would be no need to provide additional open space or upgrade existing open spaces such as Brodie Close reserve or the Old Aerodrome complex (to the extent that any residents may use them). Mr Costa said that the subdivision simply formalises the unit development on the land and it would not increase development potential or use of parklands particularly given communal open space provided within the development. Mr Costa emphasised that the Council was pursuing Amendment C28 to the Scheme and is seeking a Development Contribution Plan Overlay ("DCP") including a public open space contribution but that had not been applied to the subject land. In relation to the Regional Open Space Strategy, Mr Costa added that the Old Aerodrome is for sports with only restrictive private use, no monies are proposed to be spent on works in that reserve within the next 5 years and no details have been provided for works in local parks.

8 Conversely, Mr Sherman submitted that the public open space contribution can assist toward the achievement of the comprehensive programme adopted by the Council in its 2004 Regional Open Space Strategy and associated Mildura Sporting Reserves Masterplans (2004). He submitted that the review site is within the Mildura West open space precinct and a schedule of works is set out in the Strategy backed-up by the Masterplans. That includes works to the Old Aerodrome reserve, Washington Park, Mansell Reserve, Brodie Park and riverfront parklands. Mr Sherman contended that the subject land is essentially a greenfields site and that occupants would use some of the existing parklands or facilities if not all. It was said that the area of communal open space proposed is effectively an extended median strip and would not cater for the needs of residents.

9 It is first necessary to set out the legislative basis that is relevant to my consideration of the material before me. Section 18 of the Subdivision Act 1988 ("the Act") empowers a Council to require an applicant who proposes to create any additional or separately disposable parcel of land by a Plan of Subdivision to, inter alia:

pay or agree to pay to the Council a percentage of the site value of all 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%.

10 Section 18(1A) of the Act provides that a Council may only seek 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:

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the existing and proposed use or development of the land;

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any likelihood that existing open space will be more intensively used after than before the subdivision;

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any existing or likely population density in the area of the subdivision and the effect of the subdivision on this;

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whether there are existing places of public resort or recreation in the neighbourhood of the subdivision, and the adequacy of these;

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how much of the land in the subdivision is likely to be used for the places of resort and recreation for lot owners;

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any policies of the Council concerning the provision of places of public resort and recreation.

11 Section 20 of the Act sets out the powers whereby which a Council may use funds obtained under the Act, including to buy land and to improve land already set aside or zoned as parklands or a similar purpose.

12 In relation to the provisions of the Mildura Planning Scheme ("the Scheme") that might be relevant to the consideration of this Application, I note that:

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Clause 19.01-2 allows "the placing of open space requirements on development proposals" in Schemes.

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Clause 52.01 (Subdivision) does not specify an amount for an open space contribution within the Rural City of Mildura and the subject proposal is not exempt from the provisions of that Clause.

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There are no policies at Clause 21 or 22 of the Scheme that specifically address public open space contributions. The policies at Clause 21.04-7 and Clause 22.07-2 do not really assist in relation to a contribution under the Subdivision Act.

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I was referred to Amendment C28 to the Scheme that has been approved and referred to the Minister for Planning. It is the result of a major review of the Scheme. Among a range of matters, it includes large areas of land within a Development Contributions Plan Overlay. The Mildura Regional Open Space Strategy (December 2003)[1] is a proposed reference document.

13 As noted by Mr Sherman, previous Tribunal decisions establish important principles that are relevant to the current Application, including:

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Even though there may be no specific requirement for a public open space contribution under Clause 52.01 of the Scheme, a contribution under Section 18 of the Act may still be sought (Katella Barbara Nominees Pty Ltd v Glen Eira CC (2002) 11 VPR at paragraph 10).

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A contribution is not mandatory and the provisions of Section 18 of the Act do not adopt 5% as the starting point if a contribution is to be required. Rather, an appropriate amount not exceeding 5% may be identified having regard to the matters set out at Section 18. (Phillips v Macedon Ranges SC [2003] VCAT 1882).

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Open space contributions do not necessarily need to be for the acquisition of new open space and may be used for capital works/improvements to existing open spaces (Peter Herbert and Associates Pty Ltd v City of Stonnington 17 AATR; 31).

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The funds are not intended for general maintenance and it is reasonable to consider improvements to both local and regional open space as relevant to the circumstances of the case (Herbert, Williams v Nillumbik SC [2002] VCAT 1566 and Stokoe Pty Ltd v Melbourne CC [2000] VCAT 2621).

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It is valid to consider contributions being used to facilitate both the active and passive recreation needs of occupants (Stokoe Pty Ltd).

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It is a matter for a Council as to how a contribution is to be provided, whether by way of land, cash or a combination of both (Trethowan v Mornington Peninsula SC [2002] VCAT 1377).

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There should be evidence of a programme in place for monies to be spent but not necessarily in the same financial year (Herbert).

14 Taking into account the provisions of Section 18 of the Act and applying these principles, some of the submissions by the Applicant are fundamentally flawed or wrongly premised in my view:

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It is incorrect to assume that because on-site provision of private open space accords with Clause 55 that would be sufficient to provide for all the open space needs of residents and, in turn, that no contribution should be applied as a matter of principle. That a resident may be able to sit in the rear yard and read a book or do some gardening does not mean that they may not use a public park, such as the riverfront walkways. Lot sizes may be relevant to this type of consideration.

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Related to that, it is flawed in my view to conclude that a very modest area of communal space can provide for the reasonable active and passive recreation and open space needs of occupants that would not met within each lot. Again the size and configuration of the communal area set aside may be a relevant consideration.

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It is also incorrect to contend that because the DCP might not seek a contribution from this area no public open space contribution is justified. Applying the same logic as the first of the principles that I have set out in paragraph 13, it does not automatically follow that a contribution under Section 18 of the Act is not warranted where the DCP Overlay does not exist. It seems on the limited information before me on this point that if a contribution toward public open space is not being provided under the DCP when it is introduced into the Mildura Scheme then provided that the applicable tests of the Act are satisfied to justify the amount sought by the Council a contribution may be sought. It would not be reasonable for a contribution to be effectively paid twice as it is may also not be appropriate to preclude from any contribution those subdivisions outside a DCP as a matter of principle simply because they are not within such an Overlay.

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That an area of communal open space, in a developed form, that has a higher monetary value/cost than a cash contribution being sought is not particularly relevant to an assessment.

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The subdivision may not increase development potential but it is the avenue adopted by legislation to gather funds where the provisions of the Act find it to be justified.

15 The weight given to some of the above points may well turn on the facts. For example, a situation with lots of over 1,000 square metres each with a single dwelling and a very large area of communal open space may be viewed differently to the current proposal which comprises relatively small lots and little useable communal area.

16 When considering the specific design elements of the proposal before me, the provisions of the Act and the above principles, I find that there is a sound case for a substantial contribution at 5% as sought by the Council for the following reasons:

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The previous use of the land, comprising one dwelling on land otherwise used for horticulture, would place some but limited demand on the public open space network compared with the approved development.

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The approved development comprises 52 two and three bedroom dwellings with a significant population likely once all units are occupied. The minimum would be 52 persons but more could be reasonably expected including when observing the number of dwelling designs with double car garages.

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Areas of private open space accord with the requirements of Clause 55 but are not large for two and three bedroom units.

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The area of communal open space within the development is minimal to service the number of residents that are likely on the land. That area is located adjacent to two roadways and service facilities such as mail boxes and rubbish collection areas. It may have some use but its position, size and confined width would not satisfy the reasonable open space needs of occupants.

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As a result of the above, the occupants would be likely to avail themselves of existing public open space facilities either local parks or regional facilities including the delightful riverfront parklands. The number of potential users from the approved development would increase demands on the facilities to which the Council would have to respond. That would be the case even if many of the units were taken by older persons, as is the market focus of the advertising signage on the land.

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The Council has developed and adopted detailed strategies to improve existing open spaces and I am satisfied that it is proceeding with implementation.

17 It follows that I have not been persuaded by any of the arguments put forward by the Applicant that no contribution should apply. I also find that the 5% is reasonable in the circumstances and no reduction is warranted. Thus, for the above reasons, I will affirm the Council's decision.

[1] A date that differs to the version of the Strategy tendered at the Hearing.