Victorian Civil and Administrative Tribunal|2005-12-02

Revill v Stonnington CC [2005] VCAT 2583 (2 December 2005)

Application under section 80 of the Planning and Environment Act 1987; Stonnington Planning Scheme; Residential 1 Zone; Heritage Overlay; Two Lot Subdivision; Condition Requiring Public Open Space Contribution; Council Considers Lot Likely to be Further Subdivided So Exemptions Do Not Apply; Applicant Considers it Unlikely so Condition is Unreasonable; Considerations under section 18 of the Subdivision Act 1988 as to Whether a Contribution is Needed.

With respect to Planning Permit 0448/05, the Responsible Authority's decision is varied. It is ordered that condition 3 of Planning Permit 0448/05 be deleted and the remaining conditions be renumbered accordingly.

1 This is an application to review condition 3 imposed by Stonnington City Council ('the Council') in Planning Permit 0448/05 for the subdivision of land into two lots at 61 Talbot Crescent, Kooyong. This condition requires the owner of the land to pay 2% of the land value to the Council as an open space contribution. Mr Revill, the owner, opposes this condition submitting it is inconsistent with clause 52.01 of the Stonnington Planning Scheme and section 18 of the Subdivision Act 1988 as this is a two lot subdivision only and further subdivision is neither contemplated nor likely.

2 The site is located on the corner of Talbot Crescent and Elizabeth Street in Kooyong. It contains a dwelling at its northern end constructed in the late 1990s, and a 1930s building that currently provides two separate residential occupancies, described by Mr Hocking as "two 'up and down' flats".

3 The Permit allows the subdivision of the site into two lots, comprising the recent dwelling in one lot (lot 2) and the older building with two occupancies in the other lot (lot 1).

4 The site is contained within a Residential 1 Zone and is affected by a Heritage Overlay under the Stonnington Planning Scheme ('the Planning Scheme'). A permit is required to subdivide land pursuant to the zone and the overlay control.

5 Mr Chivers advised the Council had no concerns about the merits of the proposal in light of the planning scheme policies or controls, and noted this proposal is to subdivide existing development on the site.

6 The condition in dispute relates to the requirement for an open space contribution and therefore the following summary of the relevant planning policies and controls relates to this aspect of the subdivision only.

7 Mr Chivers pointed out clause 19.01-2 of the State planning policies states planning schemes should enable the placing of open space requirements on development proposals. In the local planning policy framework, the Municipal Strategic Statement seeks to maximise the availability and use of public open space throughout the municipality; and the objectives of the Open Space local planning policy at clause 22.01 seek to ensure contributions are made for the acquisition and development of open space. Its policy requirements include:

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An applicant who proposes to subdivide land is to make a contribution to the responsible authority for public open space of an amount specified in the schedule to Clause 52.01, that being the requirements of the Subdivision Act 1988 on a 2 lot plan of subdivision, 2% on a 3 lot plan of subdivision, 3% on a 4 lot plan of subdivision, 4% on a 5 lot plan of subdivision and 5% on a plan of subdivision for 6 or more lots.

8 Clause 52.01 of the Planning Schemes states a person proposing to subdivide land must make a public open space contribution in an amount specified in the schedule to this clause. The amounts specified in the Open Space local planning policy are contained in the schedule; however there is no specified amount for a two lot subdivision in the schedule. Clause 52.01 goes on to state that if no amount is specified, a contribution may still be required under section 18 of the Subdivision Act 1988.

9 Clause 52.01 concludes by stating:

A subdivision is exempt from a public open space requirement, in accordance with Section 18(8) of the Subdivision Act 1988, if:

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...

•

...

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It subdivides land into two lots and the council considers it unlikely that each lot will be further subdivided.

10 There are two matters related to the consideration of this application for review. The first is whether the two lot subdivision is exempt from a public open space contribution. For the reasons explained below, I am of the opinion this subdivision is not exempt. This finding then leads me to the second matter, which is what amount of open space contribution, if any, is considered needed for this subdivision. Having considered the requirements of section 18 of the Subdivision Act 1988, I find that no public open space contribution is needed as a result of this subdivision and, again, my reasons are explained below.

Is the subdivision exempt from a public open space contribution?

11 Mr Chivers explained that the Council does not consider the exemptions apply, particularly the last exemption. Whilst the subdivision contains two lots, the Council considers there are three dwellings on the site and consequently it is "highly likely that at some time in the future" lot 1 containing the flats in the 1930's building will be further subdivided.

12 Mr Hocking submitted that his client is not contemplating or intending to further subdivide lot 1. Whilst this may be the case, the planning considerations are not based upon the intentions of an owner of land but rather the development or subdivision opportunities of the land itself. The fact is planning permits are not issued specifically to an individual but to a parcel of land. Permits can remain valid and 'operational' on land for many years whilst the ownership may change and hence the intentions of owners may change. Therefore, whilst I acknowledge Mr Hocking's submission on this point, I have given limited weight to it in my consideration of this matter. Further, I agree with Mr Chivers that the owner's intentions do not make the subdivision exempt pursuant to clause 52.01, as the test is whether the Council, and upon review this Tribunal, considers it unlikely that each lot will be further subdivided, rather than the owner.

13 Mr Hocking submitted there is no factual basis or evidence to support the Council's position that the land may be further subdivided and it "must require some substantiation, some evidence and something more than the opinion of, say, a Council officer". I disagree with this contention as I again refer back to the wording of the last exemption in clause 52.01, which requires the Council and the Tribunal to make a consideration as to the likelihood of further subdivision of each lot. That means it is necessary to form an opinion. This clause does not require either the Council or the Tribunal to produce or rely upon evidence but rather to consider the merits of the matter, form an opinion and make a determination. To this end, the obligations of the Council are no different to that required when they are considering the detail of a planning permit application.

14 This brings me to the question as to what considerations or tests should be considered. Mr Hocking stated:

The test is not whether it is possible to further subdivide land because, logically, that possibility always exists for each and every lot.

However, in practical terms, the potential or possibility of subdivision must be pragmatically assessed.

The Oxford Dictionary defines the test as follows:-

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Adjective (unlikelier, unlikeliest) - not likely; improbable.

The test in this case is whether the decision-maker is able to form the view that it is "unlikely that each lot will be further subdivided", which is a distinctly different test than one which might argue that the possibility simply exists.

15 I disagree with Mr Hocking that the possibility exists for every lot to be further subdivided. It is commonplace in many cases that subdivision is preceded by the development of land with dwellings, and the configurations of such developments (with, say, dwellings, private open space areas and common driveways) generally provide a reasonable level of certainty that the land is unlikely to be further subdivided. In fact, I would go further and say such developments make it improbable and unlikely that the land would be further subdivided.

16 In this case, the dwelling built on lot 2 is built to the common boundary with lot 1 and has an easement running diagonally across the opposite end of lot 2 where there is currently private open space. Given these circumstances, I am of the opinion the extent of development on lot 2 is similar to the scenario I described in the previous paragraph and it is improbable and unlikely that lot 2 will be further subdivided.

17 In regard to lot 1, it is a much larger allotment that currently accommodates a two storey building containing two dwellings, with surrounding open space and garaging for two cars. Mr Hocking described these dwellings in the following terms:

They have undergone general improvements and maintenance through the last twenty years and about ten years ago the current vehicle accommodation was provided for both the Talbot Crescent flats. They are well maintained and provide reasonable levels of residential accommodation. However, they are grossly out-of-date in terms of internal amenity, layout and comparative accommodation in the precinct would need a substantial renovation and extensive improvements if they were, for example, to be subdivided and sold off as separate lots.

18 Mr Hocking acknowledged the possibility or potential for subdivision of this lot exists but submitted it is unlikely "at this time". Clause 52.01 does not distinguish a timeframe for the likelihood of further subdivision. The fact is lot is capable of further subdivision by subdividing the land and/or the building, so there is a reasonable likelihood that lot 1 will be further subdivided, whether in the short, medium or longer term, based on its existing conditions comprising two flats with associated car parking and surrounding open space. For these reasons, I agree with the Council that this subdivision is not exempt from an open space contribution pursuant to the exemptions contained in clause 52.01.

What amount of open space contribution, if any, is considered needed for this subdivision?

19 Mr Chivers submitted that, as there is no open space contribution amount specified in the schedule to clause 52.01 for a two lot subdivision, the amount required could be as high as 5% of the land value. However, the Council has required 2% based on possibility that all three existing dwellings could have been subdivided in the one plan and it is the lowest percentage possible in the schedule.

20 Clause 52.01 does not specify an amount for two lot subdivisions and states:

If no amount is specified, a contribution for public open space may still be required under Section 18 of the Subdivision Act 1988.

21 Section 18(1) of this Act enables a Council acting as a responsible authority to impose a public open space requirement. Senior Member Byard provided the following explanation of this requirement at paragraph 5 of Williams v Nillumbik SC [2002] VCAT 1566:

The notion is that, where the subdivision of land will increase the number of people living or working in the vicinity so as to create an increased demand for public open space for resort and recreational purposes, then that need so created will be met by the provision of land or cash or both.

22 Section 18(1A) goes on to state the Council can only make this requirement if it considers that, as a result of the subdivision, there will be a need for more open space, having regard to six matters of consideration:

(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 future 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.

23 These are the matters that I must consider in determining this matter and, as a starting point, I agree with the following observations by Senior Member Byard in the Williams case:

The six considerations that the Responsible Authority (and the Tribunal on review) must have regard to, are considerations, and not absolute rules. Cases and circumstances vary. One consideration may be important in one case, of minor importance in another and not relevant in a third. Thus the relative importance of these considerations can vary considerably, with the varying circumstances of particular cases.

24 Mr Chivers suggested these considerations assume that development will follow subdivision, but in inner municipalities such as Stonnington development usually precedes subdivision and I agree[1]. Subdivision of land is the process through which open space contributions are considered and/or required, and I am of the view that it is appropriate to consider the subdivision together with the development that has occurred on the site.

25 The first three considerations talk about the likely intensity of development and density associated with the subdivision. This land contains three dwellings. Historically, there have been two dwellings on the land and the development of part of the land a few years ago has marginally increased its density to include one additional dwelling. There is existing private open space provided for these dwellings that cater for their personal needs. Therefore, I am of the opinion any increase in the use of existing open space as a result of this development and subdivision, being one additional dwelling, is marginal at best.

26 This land is located in Kooyong, near the railway station and Gardiners Creek. There are a number of existing places of public resort and recreation in this neighbourhood (that extends between the municipalities of Stonnington and Boroondara), which I consider are more than adequate for the surrounding population. They include:

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Kooyong Park that contains 5 playing fields for various sports;

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Kooyong Lawn Tennis Club that contains tennis facilities;

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HA Smith Reserve on the north side of Gardiners Creek that contains 2 playing fields for various sports;

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A bicycle path along both sides of Gardiners Creek;

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A cycle track on the north side of Gardiners Creek, at the bottom of Robinson Road, Hawthorn;

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The Hawthorn Malvern Hockey Centre on the north side of Gardiners Creek, near the bottom of Auburn Road, Hawthorn; and

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The Robert Menzies Reserve and Tooronga Park on the south side of Toorak Road.

27 The Stonnington Open Space Strategy is a reference document to the Open Space local planning policy at clause 22.01. Mr Chivers highlighted this Strategy recommends the retention of Kooyong Park for sporting use with integrated informal recreation use, as well as investigating the provision of pedestrian paths separate to the existing shared bicycle/pedestrian paths. He submitted one additional dwelling will increase the demand for public open space mainly at Kooyong Park and there is a strong nexus for requiring a contribution so that the monies can be put toward the adequacy of this reserve.

28 The schedule to clause 52.01 states that the amount of contribution toward public open space for 2 lots is "none specified", therefore in my opinion the starting place for considering the imposition of a requirement is 0% and there needs to be sufficient justification for imposing a requirement. It is clear that Kooyong Park provides a range of facilities for a broader community than just this neighbourhood as it includes a range of sports grounds, as well as shared paths and seating. I do not consider that one additional dwelling in the neighbourhood will result in any discernible increase of use of these facilities. Further, I find that the Strategy provides no clear guidance as to what improvements are sought to be made to Kooyong Park for which open space contributions will be used. Further, the reference to separating bicycle and pedestrian paths is a point to be investigated; the Strategy does not state that this will definitely be implemented. Given these findings, I do not consider that, as a result of this subdivision, there will be a need for more open space or improved open space, so it is not appropriate to include a requirement for an open space contribution in this Permit.

For the above reasons, the decision of the Responsible Authority to grant a permit is varied. It is ordered that Planning Permit 0448/05 be modified by deleting condition 3 and renumbering the remaining conditions.

Revill v Stonnington CC [2005] VCAT 2583

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Decision date

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Judgment (40 paragraphs)

Revill v Stonnington CC [2005] VCAT 2583 (2 December 2005)

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