Victorian Civil and Administrative Tribunal|2006-10-23

J.M.F.T. Nominees v Frankston CC [2006] VCAT 2252 (23 October 2006)

Two lot subdivision; failure to grant a permit in prescribed time; council notified it would grant a permit subject to conditions; conditions relating to s.173 agreement for 5% private open space contribution on further subdivision to be reviewed; ample public open space in area; imperceptible rise in population; legality and appropriateness of proposed agreement and conditions.

J.M.F.T. Nominees v Frankston CC [2006] VCAT 2252

A permit is granted for the subdivision of land into two lots in accordance with the endorsed plans and subject to the following conditions:

1 The subdivision as shown on the endorsed plans must not be altered without the prior written consent of the responsible authority.

2 Each lot shown on the endorsed plan must be provided with a stormwater legal point of discharge to the satisfaction of the responsible authority (Infrastructure Manager).

3 A statement of Compliance will not be issued until the following requirement is satisfied -

a

The shed within the proposed Lot 2 is removed to the satisfaction of the responsible authority.

4 No dwelling must be constructed outside the building envelope as indicated on the endorsed plan without the prior written consent of the responsible authority.

5 The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with that authority's requirements and relevant legislation at the time.

6 All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.

7 The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.

8 The vehicle crossings must be constructed to Frankston City Council's standards and specifications to the satisfaction of the responsible authority (Infrastructure Manager).

9 Where the development involves work on or access to council controlled land including roads, reserves and rights of way, the owner, operator and their agents under this permit shall at all times take adequate precautions to maintain works to the highest public safety standards.

Precautions are to include:

•

appropriate signage to AS1743 road works signing code of practice; and

•

the provision of adequate barricading of works, including trenches of Service Authorities and any other road openings sufficient to ensure public safety.

All relevant permits are to be obtained from council for works within the existing road reserves in addition to the planning permit.

10 This permit will expire if one of the following circumstances applies -

a

the subdivision is not certified within two years of the date of this permit; or

b

the subdivision is not registered within five years of the date of certification.

The responsible authority may extend the periods referred to in (a) if a request is made in writing before the permit expires or within three months afterwards.

The Responsible Authority is directed to issue a permit under s.85(1)(b) of the Planning and Environment Act 1987.

Mr. How Ng, Town Planner of H & G Town Planning Pty Ltd

1 This is a review of a failure to grant a permit under s.79 of the Planning and Environment Act 1987 for the subdivision of land into two lots within the prescribed time. Because the council had decided after the application for review had been lodged to grant a permit subject to conditions, the only matters to be reviewed are permit conditions, particularly one relating to 5% public open space contribution under s.18(1) of the Subdivision Act 1988.

2 The site with an area of 952 square metres is on the southern side of Wallace Avenue with a rear abuttal to Barwon Avenue. This is a well established residential area, with a number of dual occupancies and medium density developments within the surrounding area. The site contains an existing single storey, two bedroom dwelling fronting Wallace Avenue being some 13 metres from the frontage. The site is only two lots from the Wallace Avenue Park Reserve, a large tree reserve to the west. There are also a number of other public open space reservations including Jubilee Park that contains a number of ovals and other sporting facilities. Some hundreds of metres to the south-west is Bruce Park and other public open space reserves.

3 This is to subdivide the land into two lots, one containing an existing two bedroom dwelling and the other vacant land abutting Barwon Avenue. At the same time, an application for two additional double storey dwellings on the newly created lot has been considered by the responsible authority. It indicates it will be issuing a notice of decision to grant a permit. Lot 2 will have an area of 398 square metres. It will be accessed from Barwon Avenue.

4 The land is affected by the relevant policies of both the state and local planning policy frameworks, the MSS and local policies. It is zoned Residential 1 with no overlays. It is also affected by clauses 56 and 65 of the planning scheme.

5 This was lodged on 20 April 2006. The application for review was lodged on 21 July 2006. Notice of application was required by the Tribunal and no objections were received. The responsible authority notified both the applicant and the Registrar that it would have issued the permit subject to 9 conditions. The condition at issue is condition 3 -

A Statement of Compliance will not be issued until the following requirements are satisfied -

a. The shed within the proposed Lot 2 is removed to the satisfaction of the Responsible Authority; and

b. The owner of the site enters into an agreement under Section 173 of the Planning and Environment Act 1987 with the Responsible Authority to provide the following:

(i) No dwelling must be constructed outside the building envelope as indicated on the endorsed plan without the consent of the Responsible Authority;

(ii) The owner(s) of the land must pay to Council a sum equivalent to five (5) per cent of the site value of all land in the subdivision in the event of any future subdivision of either of the two lots;

(iii)

The applicant to cover all costs relating to the preparation and registration of the Agreement (including costs incurred by the Responsible Authority).

The Section 173 Agreement shall be registered in accordance with the provisions of Section 181 of the Planning and Environment Act 1987.

6 Submissions, documents and photographs tabled at the hearing are retained on the Tribunal file.

7 In reaching the view that it is appropriate to require a public open space contribution of the maximum percentage to be provided under the Subdivision Act s.18 and at cl.52.01 of the planning scheme, the responsible authority has determined that each lot will be further subdivided, particularly as there is an application with it at the present time for a three dwelling development on the land. It also considered that the existing open space will be more intensively used, that there will be an increase in the population density, that the existing places of public resort or recreation in the neighbourhood are inadequate for increased population and that it has an open space strategy for the provision of public resort and recreation and a playground strategy. This assessment deals with the sub-sections of s.18(1)(A) of the Subdivision Act.

8 In addition to the public open space requirement it wishes to levy, it also allocates 13 cents of every dollar it collects from rate revenue to open space planning development and maintenance. Mr. Tokun did not provide any evidence that the responsible authority would be purchasing new land in the neighbourhood but rather stated that the any increased funds would be used for park maintenance and improvements as well as development of reserves such as the Wallace Avenue Park Reserve. One of his arguments was that there would be an increase of density caused by the development of some 200% even though in a large neighbourhood the increase in population from two to six persons on a lot and does not necessarily lead to an overuse of existing public open space. It may be said that continued subdivision of these older large lots to cater for medium density housing would, over a period, significantly increase demand, however, the Tribunal can only deal with the circumstances at this time.

9 I find it significant that there are quite large areas of public open space within reasonable walking distance, that is less than a kilometre. It may be that codes used 500 metres as a reasonable walking distance, but for a healthy person to walk a kilometre is something in the order of 10 to 12 minutes. That in my view is not too far for anyone to walk. Jubilee Park is across the Peninsula railway line close to the Leawarra railway station. It contains three ovals, large parking areas, a sporting stadium and other recreation facilities. There are two large parks to the south-west towards Moorooduc Highway, Frankston Golf Club is less than a kilometre away and there are a number of small neighbourhood parks within that larger neighbourhood. While the Wallace Avenue Park being of some 4 hectares in area is undeveloped from an active recreation perspective, it is well treed and has walking tracks meandering through it. It provides for excellent passive type recreation.

10 Mr. Ng, as a key element of his submission, quoted from the recent decision of the President, Justice Morris in Palenkas v. City of Whitehorse, 15 VPR 237, at page 237 where His Honour deleted a condition requiring 2% contribution for public open space in a similar situation. While agreeing that the responsible authority put forward the view that the two lots could be further subdivided he made a telling point. He said that the existence of a power of discretion does not mean it will be exercised. He referred to a limit on the exercise of discretion under s.18(1)(a) of the Subdivision Act where he considered that the Tribunal must be satisfied that, "as a result of the subdivision, there would be a need for a more open space". He referred to the responsible authority's concern that if either lot in the subdivision is further subdivided the council will miss out on its public open space contribution. He distinguished between the outcome in relation to the approved subdivision versus that in relation to some contemplated future subdivision. He concluded that there is no power to impose a levy on the contemplated future subdivision and, while this may seem harsh to the responsible authority, it is how the legislation operates and stated -

it is not a matter that is proper to be addressed now in relation to this subdivision.

11 Mr. Ng referred to a number of other authorities such as Peter Herbert & Associates Pty Ltd v. City of Stonnington, 17 AATR 27, at pp 29-30 where the Tribunal indicated -

Public open space contributions can no longer be seen as a form of municipal taxation. There must be clear evidence that monies collected by this means will be spent in a way which benefits the neighbourhood of the subject site.

12 Mr Ng supported this by quoting from Judge Else-Mitchell, of the Land and Valuation Court of New South Wales in Gillott v. Hornsby Shire Council, 10 LGRA 285 at p 289 to 290. Judge Else-Mitchell among other things stated that if facilities are dedicated to public use already and if those around it can equally use them then a capital contribution cannot be required for persons that come into the area later and wish to use the facilities as well.

13 I accept Mr. Ng's contention that based on the decision of Justice Morris the mere subdivision of this land does not attract any more population to the area or increase any demand for public open space.

14 These matters were also well researched by Member Read in Villawood Homes v. City of Greater Geelong [2006] VCAT 2041.

15 It is my conclusion that the responsible authority's reasons for the proposed condition are not made out and therefore the condition will be deleted from the permit that will issue.

16 In relation to the s.173 agreement that required the public open space contribution and "no building outside of building envelope without the approval of the responsible authority in writing", I do not believe that there are sufficient grounds for a s.173 agreement. In any case these matters can be handled by normal permit conditions. Section 173 agreements by their nature expensive to produce and fiddly to remove.

17 In a recent decision in the Supreme Court, Justice Osborn ruled that a permit condition does not necessarily die with the completion of a subdivision or development. Some conditions are ongoing. This would apply to a condition requiring the responsible authority's approval if there was to be any activity outside a building envelope. This is in spite of the fact that such a building envelope is not registered on title. As far as I am concerned a simple condition such as "No dwelling must be constructed outside the building envelope as indicated on the endorsed plan without the consent of the responsible authority." should suffice.

Environment Act 1987

J.M.F.T. Nominees v Frankston CC [2006] VCAT 2252

At a glance

Court

Decision date

Source

Judgment (29 paragraphs)

J.M.F.T. Nominees v Frankston CC [2006] VCAT 2252 (23 October 2006)

Parties

Legislation Cited (1)