1. The Council maintains that the proposed subdivision creates the need for more open space and, in line with its open space strategy, the contribution should be the full 5 per cent allowable under the Subdivision Act 1988 and that such contribution should be in the form of land located at the southeast corner of the land adjacent to the Edgars Creek.
2. The applicant submits that an open space contribution should not be required. The applicant contends that the requirement for an open space contribution places an unreasonable burden on the owner of the land who is already required to expend considerable funds to maintain the historic homestead on the land for the benefit of all Victorians and no further subdivision potential exists.
3. Further, the applicant submits that given the discussion in the Council officer's report, the conditions in question have been imposed for an ulterior motive, that is, to maintain views of the historic homestead on the land from Robert Street. The applicant requests that both conditions be deleted or, alternatively, that the land required for open space be in the form of a strip adjacent to Edgars Creek rather than the area covered by Lot 8 as sought by the Council.
4. The key issues in this case are:
   • Should a public open space contribution be made?
   • How much should it be?
   • What form should it take?
5. After having considered the submission presented by the parties, the details of the proposal and the relevant matters under the planning scheme and legislation, I conclude that:
   • It is appropriate that the applicant be required to make a contribution for public open space;
   • It is appropriate, on the merits, that the contribution be 5 per cent; and
   • It is appropriate for the contribution to be in the form of land to satisfaction of the Responsible Authority.
6. Accordingly, I will affirm the Council's decision. The permit will include conditions 2 and 6 as set out on the permit issued by the Council. The reasons for my decision follow.

1. The subject land fronts onto the north side of Robert Street with Edgars Creek running along its east boundary. The land is irregular, with a frontage of about 71metres and an overall area of about 7597 square metres. The land is set on relatively flat terrain, with mild slope of about 2 metres from west to east. The land is an historic property, known as Wuchatsch, is affected by a Heritage Overlay [HO10][2] and is also listed as a Heritage Place on the Victorian Heritage Register [VHR]. The historic homestead on the land dates from about the late 1850s, is located centrally on the property and constructed in bluestone. Surrounding development is residential comprising suburban subdivision and housing development typical of the 1970s.
2. Edgars Creek is developed as a concrete drain. The land on the west side of the drain, immediately adjacent to the subject property, is identified as a part of the drainage reserve. Land on the opposite side of the creek is developed as open space, containing a walkway that extends from Robert Street leading Kalara Reserve, which is landscaped and contains play equipment.

1. The proposal involves the subdivision of the land into 9 lots. The largest lot measuring 3940 square metres, contains the homestead and other buildings. Seven new lots are to be created adjacent to the west boundary, varying in size from 323 square metres to 483 square metres, two of which front Robert Street towards the southwest corner of the land. The internal lots adjacent to the west boundary are accessed from a new internal road. An additional lot measuring 399 square metres, Lot 8, is to be created at the southeast corner of the land with direct frontage of Robert Street with its east boundary adjacent to Edgars Creek Reserve.

1. The land is zoned Residential 1and affected by the HO and Development Contributions Plan Overlay [DCPO]. A permit is required to subdivide the land under the zone control[3]. In usual circumstances a permit is also required to subdivide land under the HO. However, as the land is a heritage place on the VHR, no permit is required for the subdivision under the HO[4]
2. Further, Heritage Victoria has granted a permit for the subdivision, essentially as proposed in this application. In doing so, Heritage Victoria found Lot 8, located at the southeast corner of the land to be satisfactory despite the Council's concerns that it is not.
3. Clause 52.01 of the planning scheme says 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. If no amount is specified then a requirement for public open space may be made under Section 18 of the Subdivision Act 1988.
4. The relevant part of the Subdivision Act 1988 is Section 18 and it provides that:

(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 Council may only make such 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:

(a) the existing and proposed use or development of the land;

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

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

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

(e) how much of the land in the subdivision is likely to be used for places of resort and recreation for lot owners.

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

1. General decision guidelines are at Clause 65. Amongst other things, these require consideration to be given to planning policy, purpose of the zone and overlay that apply, orderly planning, amenity and:

The provision and location of reserves for public open space and other community facilities.

1. The first question that needs to be addressed in cases like this is whether there is a need for more public open space as a result of the proposed subdivision.
2. The applicant submits that a public open space contribution should not be made in this case. This submission is based on three assertions, namely:
   • The Council's decision to impose a public open space contribution is for an ulterior motive, that is, to delete Lot 8 to preserve views towards the homestead building from Robert Street;
   • It would be inappropriate to impose a public open space contribution in this case given that the lot on which the homestead is located cannot be further subdivided and the applicant is required to make substantial financial contributions to improving the homestead building for the public benefit, and
   • The creation of small pocket parks, such as that which would be created by setting aside the area covered by Lot 8 as public open space serves little useful purpose and will become a maintenance problem for the Council.
3. The applicant basis the assertion that the Council imposed the requirement for a public open space contribution for the ulterior motive on discussion set out in the officer's report to the Responsible Authority. That report sets out extensive discussion on the background to the matter. The discussion makes it clear that Council Officers were opposed to Heritage Victoria granting a permit for a subdivision which allows a lot at the southeast corner of the land as it would impede views of the homestead from the street. Ultimately, Heritage Victoria did not agree with the Council's position and has granted a permit for the subdivision of the land which includes a lot at the southeast corner, that is, Lot 8.
4. I can understand the basis on which the applicant makes this assertion given the somewhat extensive discussion about the heritage issues and the Council's persistent view that Lot 8 is inappropriate from a heritage viewpoint despite Heritage Victoria's approval of the subdivision. However, the report also discusses Council's strategies to enhance open space assets at key locations, particularly along waterways.
5. Further, I must consider the arguments presented in the Council's submissions. In those submissions, the Council makes it clear that it accepts that there is no basis for requiring the setting aside of Lot 8 for public open space for heritage reasons. Rather, the Council argues that it is reasonable for the applicant to make a public open space given that the proposed subdivision will increase demand upon existing public open space in the municipality. This is because the additional dwellings will increase the population density in the immediate area and given the small size of the new lots, residents will seek to utilise nearby public open space resources.
6. Ultimately, the assessment of whether the applicant should be required to provide public open space must be made against the provisions of Section 18(1A) of the Subdivision Act 1988. When assessed against those provisions I find:
   • The proposed subdivision will increase the number of dwellings on the land from one to nine. This is a substantial increase in the number of dwellings which will give rise to an increase in the number of people residing on the land;
   • The increase in the number of people on the land will, in all probability, result in existing public open space resources being used more intensively;
   • The subject land is in an established residential area, an area where the provision of more housing that adds to choice, affordability and makes more efficient use of existing infrastructure and facilities is supported by state policy[5]. This proposal increases density in a way that is supported by policy and the purpose of the Residential 1 zone.
   • The land is located near existing public open space adjacent to Edgars Creek, in particular Kalara Reserve. The Council's open space strategy clearly supports improvements to open space along Edgars Creek to improve linkages and accessibility[6]. Specifically, the Whittlesea Open Space Strategy supports the provision or upgrading of screen and shade plantings, barbecue facilities, shelter and pathways, as appropriate, at the nearby Kalara and Balmain Court open space reserves.
   • Aside from the setting aside of Lot 8 for public open space, as proposed by the Council, applying the principles set out by Deputy Present Gibson in Stupak v Hobsons Bay CC[7] no public open space or community facilities are provided as part of this subdivision as the heritage lot containing the homestead is privately owned and occupied.
   • The provision of public open space which enhances linear linkages is consistent with the policies in the scheme at Clauses 15.10, 21.04-3, 21.13[8] and 22.01.
7. I acknowledge that the applicant is required to carry out works to the homestead and that its retention and enhancement does carry with it a public benefit. However, these are not matters that fall within the ambit of Section 18(1A) of the Subdivision Act 1988. Rather, they are particular features that need to be dealt with as part of the overall redevelopment of the subject land as a whole by way of subdivision. I do not accept that only part of the land is capable of being subdivided. The reality is that the subdivision affects the whole of the land and the retention of the homestead within a large lot approaching 4000 square metres is the necessary response to heritage constraints.
8. It is also common ground that the land has not been subject to an open space contribution in the past. While I understand that part of the land adjacent to the creek was taken over for drainage purposes, the applicant concedes that this was not for open space.
9. The assessment against the criteria set out in Section 18(1A) lead me to the conclusion that there is proper basis for requiring a public open space contribution as part of this proposal.

1. The next question is how much should that contribution be. While the criteria set down in the Subdivision Act 1988 provides guidance on whether more open space should be provided, as noted by the Tribunal in Stupak, there is little guidance as to how much it should be.
2. Clearly, there is discretion as to the percentage to be applied. In situations where a specific requirement is not set out in Clause 52.01, in my experience, it is not uncommon for Councils to seek the full 5 per cent allowable under Section 18 of the Subdivision Act 1988. The absence of clear guidelines can also lead to inconsistency.
3. In this regard I note the comments of Deputy President Gibson in Stupak when she said:

26. The lack of guidance in section 18(1) about what percentage of public open space may be required means that a discretion must be exercised in each case and this may lead to apparent inconsistencies from time to time. This is unfortunate and potentially inequitable.........

27. Consistency would be better assured if the council included a figure in the schedule to clause 52.01 of the planning scheme. However, the absence of such inclusion does not mean that the council is necessarily wrong to pursue a policy of seeking 5% on the basis that the amount an additional dwelling will contribute to the provision of open space should be the same regardless of the size of the development. I see no reason why a different proportion should be paid by small subdivisions compared to large subdivisions. The amount will be different, with small subdivisions paying less than large subdivisions by virtue of the difference in their site value, but the amount paid should not be confused with the proportion paid. I regard the provision of public open space contributions to be a benefit to the public good.

1. Although the Tribunals' decision in Stupak relates to a cash contribution, I consider the same principle adopted by the Tribunal in that case applies to contributions in the form of land.
2. Taking into account the nature of the subdivision, the extent to which it will add to the demand for more and improved public open space and the policies and strategies in the scheme, I find that a 5 per cent contribution is justified. It does not matter whether the land is capable of further subdivision in this case given my finding that the subdivision allowed by the Council requires a contribution of 5 per cent and the requirement for such contribution may only be applied once.

1. The next issue to be dealt with is the form of the contribution.
2. The Council seeks the setting aside about 5 per cent of the land area, roughly approximating Lot 8, for public open space. It says that open space is required in that location to improve linear open space linkages, as contemplated for the Lalor West Precinct under the Whittlesea Open Space Strategy. It also says that the development of an open space node which includes land to the west of the Robert Street bridge, is contemplated in the Edgars Creek Master Plan June 2001.
3. The applicant submits that if a public open space contribution is required, then it should not be in the form of a node, as contemplated by the master plan, but rather, as a strip of land along the western side of Edgars Creek[9]. In support of this approach, the applicant submits that the master plan should be given little weight as there is no reference to the plan in the planning scheme nor has it been adopted by the Council. The applicant submits that the provision of a strip along the creek achieves the policy outcome with respect to the development of open space along waterways while at the same time, not obliterating Lot 8 which would still be possible, albeit at a smaller size of about 361 square metres.
4. In response to the applicant's proposition, the Council submits that the open space strip offered by the applicant is not acceptable as it does not create an open space node and the strip of land will result in maintenance issues.
5. I agree with the applicant that it is inappropriate to place any weight on the master plan. The plan has been in existence for some time. Not only is it not referred to in the scheme, but it is not even adopted by Council. Given these circumstances, the Council's commitment to the master plan is doubtful.
6. That having been said, ultimately, it is the Council's call as to whether it wishes open space to be provided by way of a cash contribution or land. In this case, the Council is of the view that a land contribution is required. Further, while I do not consider that weight should be given to the master plan, the development of an open space node in this location, as proposed by the Council, generally accords with the Whittlesea Open Space Strategy which seeks to enhance linear linkages along waterways like Edgars Creek. The provision of an open space node fits in with this strategic approach.
7. Further, I note the views expressed by two legal members of the tribunal with respect to this issue.
8. In Trethowan v Mornington SC[10], the Tribunal was presented with the argument that the provisions of the Subdivision Act 1988, as they stand, bestows the choice as to how public open space is provided on the applicant. In response to this argument, the Tribunal, comprised of a Senior (Legal) Member, said:

31. This argument rather overlooks the purposes and policies behind provisions like Clause 52.01 and s 18 SD Act. Whether explicit or implicit, I think the policy behind such provisions is clear enough. It is in the interests of good planning, and in the public interest, that provision should be made for public open space for recreational purposes when subdivision increases the demand and need for such facilities. It is destructive of such policies if the choice of mode of contribution, and the location of land where it is the form of contribution, is transferred into the discretion of the subdivider.

1. Further, in Clare v Maroondah[11], the Tribunal, comprised of another Senior (Legal) Member said:

Thus my conclusion is that the decision of the council to choose the nature of the public open space contribution is not subject to review by this tribunal, except on the basis that the decision that is so unreasonable that no reasonable council could have made the decision according to the Wednesbury case principles.

1. Given the above, I find the Council's decision to require the provision of public open space in the form required under Condition 2 is reasonable.

1. For the reasons set out above, I will affirm the Responsible Authority's decision. The permit must contain conditions 2 and 6 as set out in the permit issued by the Council on 19 September 2012.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[6] See Sections 4.1.2 relating to the development of linear parks along creek valleys, including Edgars Creek and

[7] [2011] VCAT 618 see paragraph 14(e)

[8] This clause list the Whittlesea Open Space Strategy as a Reference Document

[9] A plan showing the provision of a strip of open space along the creek was tabled at the hearing on 7 January 2013. The Council was given opportunity to file further submissions on that matter.

[10] [2002] VCAT 1377

[11] [2008] VCAT 606