P M Kennedy Land Surveyor v Hobsons Bay CC [2009] VCAT 48

Through this proceeding, the applicant contests a permit condition seeking a 5% open space contribution. The permit allows a 3-lot subdivision of land at 227 Woods Street, Newport to facilitate a three dwelling development.
Clause 52.01 of the Hobsons Bay Planning Scheme contains no schedule specifying a percentage of open space contribution required to be made for a subdivision of this type in this area. The matter therefore falls for determination, having regard to the matters in s18 of the Subdivision Act 1988 and any other factors relevant to the determination of an application to review a permit condition.
Section 18 of the Subdivision Act 1988 allows for a contribution not exceeding 5%. Mr Rantino for the responsible authority was at pains to point out that 5% should not be regarded as an 'extreme' or 'worst-case' outcome that could only be justified in exceptional circumstances. He cited the decision of Senior Member Byard SM in Agnew v Yarra City Council[1] in support of this proposition. I agree with this view.
However, Mr Rantino's submission also appeared to suggest that a 5% contribution should be treated as a 'normal' contribution and, having regard to the factors in s18(1A) of the Subdivision Act 1988 in a holistic way, should commonly support Council's policy for an open space request of 5%. He argued that do otherwise could lead to arbitrary outcomes between 0% and 5% that may be difficult to reconcile in planning terms across different parcels of land. If this is what Mr Rantino is contending on behalf of the responsible authority, I do not share that view. If the responsible authority wishes to apply the 5% as a 'standard', it should introduce a schedule into clause 52.01 of its planning scheme (as Councils have been encouraged to do in the past[2]). This would entrench the degree of proportionality and consistency across development that the Council apparently seeks to achieve. However, if the Council fails to deal with the matter through clause 52.01, it implicitly accepts the flexible exercise of discretion on a case-by-case basis, which may well lead to differing outcomes. As Senior Member Byard noted in Agnew, if 5% is the 'right amount', then it can be imposed just as can any lesser percentage thought to be appropriate.
Is 5% the 'right amount' in this case? Or some lesser amount? Mr Hocking for the applicant contended that a maximum of 2% would be appropriate (if any amount at all) having regard to a 2% contribution levied for a similar subdivision/development in the same street in 2002[3].
From the Council officer report, it is apparent that a 5% contribution has been applied as an inflexible Council policy. I agree with the applicant that the officer report discloses no analysis whatsoever of the relevant criteria under the Subdivision Act 1988. It cannot be relied upon as forming a considered justification for the condition imposed, much as Mr Rantino valiantly attempted to 'defend' the responsible authority's decision. Although Mr Rantino referred me to Council open space plans, recreation strategy plans, demographic trends and the like, none of these are referred to (expressly or implicitly) as a basis for the responsible authority's decision. On an application for review to the Tribunal, s84B of the Planning and Environment Act 1987 requires me to consider not only the matters that the responsible authority properly took into account, but also the matters that it should have taken into account. The hearing before me was therefore very much a de novo consideration of relevant issues.
Having considered the very detailed submissions of both parties, the cases referred to, and other relevant factors, I have come to the view that a 3% contribution is appropriate in this case. Having regard to the volume of material provided by the parties, it is in my view unnecessary to exhaustively deal with all of the issues raised before me, but rather I will indicate those germane to my decision.
As I have indicated, it is apparent that a 5% contribution has been applied in this case as an inflexible Council policy. In the absence of a planning scheme requirement for public open space, a more objective analysis is warranted on a case-by-case basis;
Section 18 of the Subdivision Act 1988 sets out relevant criteria for consideration for a public open space requirement, and these might properly be regarded as the primary matters for consideration. The public open space requirement has however been imposed by way of permit condition (as is common) and the matter comes before the Tribunal as an application to review that condition. I must therefore also be satisfied that the condition is reasonable in planning terms, having regard to the matters in s84B of the Planning and Environment Act 1987 and other matters commonly relevant to a conditions review;
The relevant parts of the State and Local Planning Policy Frameworks dealing with matters such as urban development, recreation, open space and subdivision, would all suggest that some amount of public open space contribution is warranted in this case. I agree with the comments of Senior Member Byard in Trethowan v Mornington Peninsula Shire Council[4] endorsing the underlying planning principles that support a public open space contribution where the potential intensification of land use for residential purposes may increase the need for areas of open space for the increased population. There is however nothing in the planning policy framework that suggests that a maximum 5% is warranted in a case such as this, either as a 'normal' contribution generally, or as the 'right amount' in this case;
When one looks behind the criteria in s18 of the Subdivision Act 1988 [5], it is apparent that the 'sliding scale' between 0% and 5% was intended to accommodate smaller developments, and was principally derived to enable a consideration of the likely number of residents and the additional load that might be placed on existing public open space. This is consistent with the principle endorsed in Trethowan above.
Although the subject land is relatively small in overall size, and the amount of private open space is limited, the private open space for each of the three proposed dwellings conforms to relevant ResCode standards. I agree with the responsible authority that this is no way negates a 'public' open space contribution. However, equally, I do not believe that a smaller amount of private open space is necessarily indicative of a greater likely burden on public open space;
The bigger lot sizes of the past, and the prior existing single dwelling on the subject land with larger existing private open space, may reflect past demographic trends. It cannot be argued that three dwellings on the land will necessarily mean three times the demand for public open space, given current demographic trends in the area, smaller family units, and quite different housing types. The demographic material provided by both parties is conflicting and inconclusive, but the land is certainly not in an area undergoing substantial population growth where there is a significantly higher burden being placed on existing public open space;
There is a substantial amount of existing public open space in the immediate area within 800 metres of the subject land, and the responsible authority concedes the land has good access to existing open space and recreational facilities. This again does not however negate some level of public open space contribution. I agree with the responsible authority that a public open space assessment is both quantitative and qualitative, and a contribution can be collected and used to 'improve' existing open space or recreational facilities in the municipality;
The responsible authority referred me at some length to the Council's Sport and Recreation Strategy Plan 2003-2007 (July 2003) and its Open Space Plan (February 2005). Neither have been referred to or incorporated in the Local Planning Policy Framework of the Hobsons Bay Planning Scheme or elsewhere in the scheme, nor were either referred to in the officer report leading to the imposition of a 5% contribution in this case. Despite some debate as to the weight I should attach to these plans, they are still of potential relevance in establishing the Council's aspirations for public open space and recreation facilities in the precinct proximate to the land, and the municipality generally;
The Open Space Plan refers to the same proportionate contribution being made per additional dwelling regardless of size (section 4.3) and Council potentially seeking a 10% contribution for new development (Newport West Action Plan, p139). However, these components of the plans cannot and should not be applied inflexibly in the absence of a planning scheme amendment to clause 52.01, which has never occurred. From my review of the plans, they do not provide a compelling case for a 5% contribution for the 3-lot subdivision of the subject land. When one looks at specific 'improvements' designated for the Newport West precinct proximate to the land[6], the key actions comprise matters such as tree planting, investigating upgrading the arboretum, designating a site for off-leash dog exercise, reviewing design layouts, and the like. These are matters one might consider to be ordinarily within the recurrent expenditure of local government on a year-to-year basis, rather than responding to the needs created by any intensification of residential use in the precinct. Only one listed item (the creation of a new trail between reserves) appears to be an item of capital expenditure for a major improvement;
I agree with the general proposition put by the responsible authority that expectations by residents for improved and upgraded open space and recreational facilities have increased over the years, and Council's clearly need to be able to respond to these expectations. Public open space contributions play a necessary part in that response. I note that in 2002, the responsible authority had only sought a 2% contribution for a similar scale subdivision at 215 Woods Street, very close to the subject land at 227 Woods Street, and that 2% contribution was upheld following a review by the Tribunal[7]. I also agree with the applicants that a level of consistency is desirable. However, I am prepared to accept that rising resident expectations for quality open space and recreational facilities, and the emergence of Council open space planning in the period since 2002, (albeit not yet incorporated into the Hobsons Bay Planning Scheme) are both such that a slightly higher percentage than 2% is warranted in this case.
I do not propose to deal with each of the six criteria in s18(1A) of the Subdivision Act 1988 individually. I have considered them within the foregoing discussion and I agree that all are met to varying degrees, but this does not of itself lead to any particular conclusion as to what is the 'right amount' of public open space contribution in a particular case. I agree with Mr Rantino that the criteria should ultimately be balanced in a holistic way, leading to the exercise of discretion that is considered fair and reasonable in the case before me.
Having regard to the relevant criteria, and the foregoing discussion, I consider a 3% contribution to be appropriate in this matter. The application is therefore allowed and the decision of the responsible authority is varied. Condition 2 of the permit must be amended to reflect a 3% public open space contribution.

[5] For example, the decision in Paul v Melbourne City Council (1984) 2 PABR 8 that gave rise to the criteria (with some modification) now enshrined in s18A of the Subdivision Act 1988, the amendments to that Act in 1991 and 1993, and the public open space provisions in the Victorian Code for Residential Development (November 1993)

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

P M Kennedy Land Surveyor v Hobsons Bay CC [2009] VCAT 48 (14 January 2009)

Parties