Victorian Civil and Administrative Tribunal|2011-10-17

The applicant also provided a snapshot of Victorian Councils listing whether or not those Councils had a schedule to Clause 52.01. Evidently, 12 of the 32 metropolitan Councils have no schedule at all and 42 of the 51 rural Councils do not utilise the schedule. Of those that do, Mr Parry submitted that the rates (for 3 lot subdivisions) are as follows:

I note for instance that Darebin has a schedule at Clause 52.01 which specifies that two additional lots require 2%, three additional lots 3%, four additional lots 4% and five or more additional lots 5% (which is the cap).
I have not verified any of these figures (other than Darebin) but they are interesting nonetheless. The first observation that I would make is that I am not convinced that it is a good planning outcome to have such a wide variety of listed provisions across the State and I wonder upon what basis these provisions were identified. Of course, on top of these specified amounts is the speculative environment that persists for those many Victorian Councils that do not have a specified amount. In that context, it is hard to see how there is anything like a consistent statewide approach on this issue.
While I can understand the frustrations of the Parry's as to why they have seemingly now been isolated for special attention, I think that it was clear from Ms. Bowes' submission that Council's former practice has now been reviewed and replaced. Council evidently for years had an informal "sliding scale" approach of an extra unit generating an extra 1% levy, similar to Darebin. Therefore, three units in lieu of an existing house was a net gain of two units and therefore a 2% levy would apply. This was the approach that was included in "Vic Code 2" up until the mid-1990's but, not surprisingly it was dropped for want of any sound rationale.

[17] The applicant argued that small subdivisions, which result in only a modest increase in population, should pay less than large subdivisions. In fact they do - 5% of land in a subdivision worth $500,000 is substantially less than 5% of a site valued at $5 million. What the applicant has failed to convince me of is why the amount paid by a small subdivision should be proportionally less than a large subdivision. Why should the percentage be 5% in the case of a subdivision of 100 lots, or even 10 lots, compared with a percentage of only 2% in the case of a subdivision of three lots?

[23] ....... I consider that as a general principle, when seeking contribution towards funding for open space, there is no basis to discriminate between different areas in terms of the proportion they should contribute unless there is a clear policy on the part of the council otherwise or in special circumstances. I am wary of suggestions that the percentage should be varied depending on the number of lots or new dwellings unless the council has resolved to adopt such an approach on a consistent and transparent basis. If a council did decide to adopt a sliding scale, the best means of implementing this would be by way of inclusion in the schedule to clause 52.01, but it could be adopted as a policy or form part of an open space plan.

In my view, the open space requirement should not be a "free for all" where arbitrary amounts are bandied around as negotiating tools. If the principle is accepted that open space provision is of benefit to the community, and that that open space area will need to be developed and maintained, then it seems to be an entirely proper use of the planning system to levy a set amount for those who are improving their land (and generating more people) and then to specifically apply that amount to an equitable open space provision. The speculative exercise of picking a figure somewhere between zero and five has, and will, lead to endless doubt and inconsistency. A system that expressly locked in the 5% would remove that speculation.
It seems to me that once the 'need' criteria has been satisfied, then a contribution of 5% is really the "default" position with the onus on the applicant to justify any reduction. In my view, no such justification has been advanced in this case. As Council has clearly justified its case for more open space on a 'needs' basis, I can find no basis to discount the amount specified in Section 18 of the Subdivision Act.

In the context of Council's extensive strategic direction on this issue, I can well understand it retreating from its former 'sliding scale' practice and instead seeking a more realistic contribution.
In the end, I can find no basis and no justification for tampering with the expressed 5% provision in Section 18(1) of the Subdivision Act 1988.
Accordingly, it is directed that the Council decision is upheld and no amendment be made to Planning Permit No. 100310.

Parry v Bass Coast SC [2011] VCAT 1977 (17 October 2011)

PM Kennedy Land Surveyor v Hobsons Bay CC [20091 VCAT 48_; Stubbs Street Kensington Pty Ltd v Melbourne CC_ [2009] VCAT 1947; Maroondah City Council v Fletcher and Minister for Planning [2009] VSCA 250; Fletcher v Maroondah CC [2010] VCAT 670; Stupak v Hobsons Bay CC [2011] VCAT 618; Parkside Developments (Vic) Pty Ltd v Moonee Valley CC [2009] VCAT 2678.

Scarleett v Hobsons Bay CC [2009] VCAT 203; Ahmed v Hobsons Bay CC [2008] VCAT 1673; PM Kennedy Land Surveyor v Hobsons Bay CC [20091 VCAT 48_; Stubbs Street Kensington Pty Ltd v Melbourne CC_ [2009] VCAT 1947; Maroondah City Council v Fletcher and Minister for Planning [2009] VSCA 250; Fletcher v Maroondah CC [2010] VCAT 670; Stupak v Hobsons Bay CC [2011] VCAT 618; Parkside Developments (Vic) Pty Ltd v Moonee Valley CC [2009] VCAT 2678.

Parry v Bass Coast SC [2011] VCAT 1977

At a glance

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Judgment (6 paragraphs)

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Cases Cited (3)

Parry v Bass Coast SC [2011] VCAT 1977 (17 October 2011)