"The following observations are brought to the attention of the Tribunal (having regard to s.18 of the Subdivision Act):

(a) The subject land is an existing residential site (contra Balaclava Junction Developments Pty Ltd v City of Glen Eira (1995/138710) which converted a petrol station).

(b) There is little likelihood that existing open space will be more intensively used as a result of the development. Each dwelling is provided with ground level open space. This is not a development which foregoes open space or relies on balconies.

(c) The population density in the area is unlikely to be impacted by the addition of four smaller dwellings. It is doubted that the Council will submit that population in the municipality is increasing.

(d) The area is gifted with abundant public open space.

(e) The dwellings provide adequate private open space.

(f) Council has no policy of which the appellant is aware apart from policies to sell public open space."

Mr Turner made quite detail submissions on behalf of the responsible authority's position including references to previous decisions of the Tribunal, and a discussion on the open space policies of the former City of Caulfield and the developmental policy for the newly created City of Glen Eira. Mr Turner concluded:

* "The City of Caulfield Local Parks Strategy (March 1987) identified the need for ongoing upgrading and maintenance of public open space facilities. Council's action in this regard is reflected in its capital expenditure budgets.

* The subject development will result in an increased demand on existing public open space in the proximity of the subject site. The proposal makes a contribution to accelerating the need to improve existing open space.

* Previous determinations of the Tribunal confirm that levies can be imposed for both the provision of new public open space and for use in the improvements of existing open space."

This Tribunal in Appeal No 1995/39537, Solid King Co v City of Boroondara, dealt with a very similar dispute in relation to an open space levy. In that appeal the subdivision created 11 small residential lots on land which had previous contained a small number of dwellings on large lots. The City of Boroondara imposed a condition on the permit requiring a 5% contribution for open space, in disallowing the appeal against that condition the Tribunal said:

"* The fact that the appeal sites were occupied for many years by detached houses, and that the owners of these dwellings would have paid domestic rates to the Responsible Authority over many years, is not really the relevant issue, the more important issue is whether or not the proposed subdivision will create an increased demand for open space and for its use.

* The Tribunal believes that there will be an increase in the demand for open space as a consequence of the subdivision, there will be a greater number of people occupying the land, and those people will occupy dwellings on significantly smaller lots.

* The 5.0% open space levy set out in the Subdivision Act is by its nature proportional to the scale of the development, the levy is 5.0% of the site value of the particular piece of land under discussion. Therefore, if the subdivision is smaller than a nearby subdivision it will as a consequence of this provision pay a lesser levy. Traditionally "discounts" from the levy have been granted to some forms of subdivision, ie. Two lot subdivisions and dual occupancies, although it is difficult to see how these discounts are equitable.

* In relation to medium density housing development, Vic Code 2 incorporated a descending scale for the "discounting" of the 5.0% levy, it is noted that this approach has been abandoned in the Good Design Guide.

* Even in established areas such as this, existing open space must be constantly redeveloped to meet the changing needs and aspirations of the local community. This subdivision will contribute to the changing demands of this open space. The money raised from levies such as this on subdivisions in this locality will only provide a very small proportion of the money expended on the development of open space in the locality.

* The proposed subdivision will increase the demand for and use of open space in this locality, there are no particular reasons why the ordinary 5.0% open space standard should be departed from in this case."

The responsible authority in this case has chosen to reduce the open space contribution from the maximum level of 5%. It follows from the conclusions of the Tribunal in the Solid King appeal that the Tribunal would have upheld a 5% contribution in this case, the Tribunal is certainly not disposed to further reduce or weigh the lesser requirement imposed by the responsible authority.

Mr Townshend referred the Tribunal to a decision of Mr Marsden in Appeal No 1996/19415, Prime Developments Proposal Ltd v The City of Stonnington, 17 AATR 27. This appeal involved the subdivision of 5 new two storey townhouses and as a consequence of the appeal Mr Marsden reduced the 4% open space contribution required by the responsible authority to 2%. Mr Marsden's decision appears to have been heavily influenced by the fact that for the year of the appeal open space contributions had significantly exceeded the responsible authority's budget expenditure for that particular precinct, and by the fact that land values in Toorak were particularly high leading to very high contributions not necessarily related to the capital expenditure requirements for open space in the area. Even if this is the correct basis for considering the questions which arise in appeals of this type, there is absolutely no evidence to suggest that these factors apply in Carnegie.

The determination of the Tribunal in Appeal No 1997/10826 is that the appeal is allowed and under the provisions of Section 149A(3) of the Planning and Environment Act 1987 the responsible authority is directed to endorse amending plans pursuant to condition 10 of Permit No GE8466 generally in accordance with the plans tabled at the hearing numbered 9630TP-01A, 9630-02A, 9630-B02, 9630-B03, except that these plans must be modified to show the proposed garages being set back not less than 3.35 metres from the rear boundary of the site.

The determination of the Tribunal in Appeal No 1997/10762 is that the appeal is disallowed.

The determination of the Tribunal in Appeal No 1996/46915 is that the appeal is allowed in part and Permit No GE8466 is modified as follows:

* Replace condition 3 with the following condition:

"Prior to the construction of the permitted dwellings the proposed external materials, finishes and colours must be submitted to and approved by the responsible authority. The external materials, finishes and colours used in the construction of the permitted dwellings must be those approved by the responsible authority."

* Replace condition 7 with the following condition:

"A 600mm high trellis must be erected above the southern boundary fence, from the rear of the car port at No 10 Lloyds Avenue to the rear of the dwelling at No 10 Lloyds Avenue, prior to the occupation of any of the permitted dwellings to the satisfaction of the responsible authority."

"Prior to the occupation of the permitted dwellings a solid timber plinth shall be attached to the fences of the St Vincents Place properties that abut the right-of-way located between Lloyds Avenue and St Vincents Place and are opposite the rear boundary of the subject site to the satisfaction of the Responsible Authority. The required plinth need not be attached to a particular fence if the owner of the fence will not consent to its attachment."

* Replace condition 16 with the following condition:

"Prior to the construction of the permitted dwellings a landscaping plan must be submitted to and approved by the responsible authority, the approved landscaping plan shall be endorsed and form part of this permit. The plan must incorporate at least one advanced medium tree in the front garden of each of the permitted dwellings. The landscaping in accordance with the plan must be established prior to the occupation of any of the permitted dwellings. Once occupied the landscaping for each dwelling can be varied in accordance with the individual wishes of each occupant, but the medium tree shown on the landscape plan must be maintained unless with the further consent of the responsible authority."

The responsible authority is directed to issue a modified permit in accordance with this determination pursuant to Section 85(1)(e) of the Planning and Environment Act 1987.