Victorian Civil and Administrative Tribunal|2009-02-11

Scarleett v Hobsons Bay CC [2009] VCAT 203 (11 February 2009)

Application under s. 80 of the Planning and Environment Act 1987 against Permit Condition Requiring a 5% Open Space contribution for Proposed Three Lot Subdivision; Hobsons Bay Planning Scheme.

Scarleett v Hobsons Bay CC [2009] VCAT 203

(A) The decision of the Responsible Authority is varied. The Tribunal directs that Permit No. PA0509652 must contain the conditions set out in the Permit No. PA0715534 issued by the Responsible Authority on 11 June 2008 with the substitution of the words "5 percent" in Condition 2 with "3 percent".

The Responsible Authority is directed to issue a modified permit in accordance with this order under the provisions of Section 85(1)(e) of the Planning and Environment Act 1987.

(B) Costs reserved. Council is granted leave to make a submission with regard to the review applicant's application for costs within 21 days of this order. The matter of costs will then be disposed of on papers.

This is an application brought by the permit applicant against condition 2 of permit PA0715534 issued to subdivide land at 43 Grieve Parade, Altona, into three lots. This condition requires:
1. Prior to a Statement of Compliance being issued by the Responsible Authority, a public open space contribution fee equivalent to 5 percent of the value of the subject land shall be paid to Council, pursuant to Section 18 of the Subdivision Act 1988.

The review site is regular in shape, with a frontage of 16.46 metres, a depth of 46.94 metres, and a site area of 781.08 sq m. It is developed with three double storey dwellings pursuant to a permit issued at the direction of the Tribunal[1]. This permit was extended also at the direction of the Tribunal[2], as the application to extend the permit was lodged out of time and Council did not have the power to extend it. To reduce delay, Council requested the Tribunal to issue a consent order to remove the need for a hearing.

The proposal is to subdivide the site into three lots to reflect the development of three dwellings on the land.
The issue here is Condition 2 that requires a 5% open space contribution.

The review site is in the Residential 1 Zone of the Hobsons Bay Planning Scheme ("the Scheme").
Mr. Wong cited the following policies from the Scheme as relevant: Clauses 12.05 (A Great Place to Be), 15.10 (Open Space), 19.01 (subdivision), 21.04-1 (Charting Our Future), and 21.11 (Open Space, Environment and Conservation).
He also tabled Council's Hobsons Bay Open Space Plan February 2005 to demonstrate the works carried out by Council in the planning of open space in the municipality, including schedule of improvement works and costing for the Altona/Seaholme Area.
The requirement for open space contribution is pursuant to Clause 52.01 Public Open Space Contribution and Subdivision. This clause requires:

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 to this clause (being a percentage of the land intended to be used for residential, industrial or commercial purposes, or a percentage of the site value of such land, or a combination of both). If no amount is specified, a contribution for public open space may still be required under Section 18 of the Subdivision Act 1988.

The schedule to Clause 52.01 made no specification to the amount of open space contribution payable. The requirement for open space contribution in this instance is, therefore, pursuant to the Subdivision Act 1988.
The assessment of the amount of open space contribution pursuant to the Subdivision Act is based on the following consideration:

Pursuant to the Subdivision Act 1988 s 18(1A), the Council may only make 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.

At the hearing, both parties spoke to written submissions. Mr. Wong tabled multiple former Tribunal decisions supporting his argument. Mr. Eccles also tabled former Tribunal decisions, one not supporting his line of argument. Mr. Wong tabled a copy of Council's open space plan City of Hobsons Bay Open Space Plan, February 2005.
At the hearing, Mr. Eccles tabled statutory declarations from a former resident and a neighbour stating that the two outbuildings on the land were bedrooms and that the house was a six bedroom house. He also called Mr. Scarlett to give evidence of the then existing conditions when he took over the property. Mr. Scarlett's evidence was that the two outbuildings were used as bedrooms, supporting Mr. Eccles' submission that the number of bedrooms before the redevelopment of the land was six, compared to the same number of bedrooms proposed in the current three unit development.
The Tribunal notes that Council objected to Mr. Scarlett being called to give evidence, as no prior notice was given of him being called. Mr. Wong requested an opportunity to investigate his evidence. The Tribunal granted leave for Council to investigate the then existing conditions as in Council records and building approvals within two weeks of the hearing. This information was received by the Tribunal on 6 February 2009, copy to Mr. Eccles.
Mr. Eccles' submission included an application for costs against Council. The Tribunal gave Council an opportunity to make a submission on this application. More about this application later in these reasons.

Council's permit condition seeks a 5% public open space contribution, and Mr. Eccles' submission is for to be less than 1%.
Having considered the submissions, the evidence of Mr. Scarlett, the two submitted statutory declarations, and review of the Scheme and the relevant parts of the Subdivisions Act 1988, the Tribunal forms the view that an appropriate rate is 3%.

There is no specification of a percentage for public open space contribution in Clause 52.01. If there is, there will be no argument of what should be the appropriate percentage.
The requirement of public open space contribution is based on the Subdivision Act 1988.
Council's submission is that 5% is appropriate. Mr. Wong cited various parts of Clauses12.05, 15.01 and 19.01 that point to the relevance of the provision of public open space in developments, and the placing of open space requirements on development proposals. He quoted parts of the Municipal Strategic Statement of the Scheme that point to Council's strategy for open space (Clauses 21.04-1 and 21.11open space) and emphasised Council's commitment to improving the quality and size of public open space in Hobsons Bay.
Further to these policies, he submitted that Council has investigated the need and provision of public open space in the municipality in the preparation of open space plans: Hobsons Bay Sport and Recreation Strategy Plan (2003-2007) July 2003 and the City of Hobsons Bay, Open Space Plan, February 2005.
He cited from the latter document that the Hobsons Bay community's participation and use of public open space is high at 80%. This study shows the site to be in the Altona/Seaholme Neighbourhood where a list of actions and development proposals to improve public open space has been formulated. This document recommended[3] a 10% of land contribution for residential development. This report concluded that the proportion of the value of contribution should be the same, whether the development is for two dwellings or twenty dwellings.
Mr. Wong urged the Tribunal not to consider the 5% as maximum. He submitted that the recent redevelopment of the land from a single dwelling to three dwellings will result in increased population and the need for more public open space. He noted that the existing private open space of the three dwellings are limited (approximately 40 sq m), and due to the proximity of the site to nearby public open space, residents of the development are likely to make use of these areas. Given the status of Altona as a major activity centre where higher residential density development is encouraged, the population density of Altona is likely to increase, putting pressure on the existing public open space.
He submitted that Council's Open Space Plan has identified the improvement works needed for the Altona/Seaholme neighbourhood. Considering the potentially higher density residential development of this neighbourhood, he argued that the 5% contribution is warranted. He listed Council's Capital Works Expenditure Program for the area which adds to a considerable sum[4]. To him, the 5% is not a maximum, nor should it be considered only in exceptional circumstances[5].
On the other hand, Mr. Eccles submitted that 5% is the top and only the strongest case should favour the largest contribution, with all others scaled down or discounted accordingly. To him, the proposal is a three lot subdivision, and that these lots are unlikely to be further subdivided in the future. Quoting the finding of another division of the Tribunal[6], he submitted that the 5% is not the starting point.
His main argument opposing the 5% contribution is that there is no net increase in the number of bedrooms before and post development. The evidence of Mr. Scarlett was that there were six bedrooms in the former 'single dwelling'. The current proposal is for three double storey two bedroom dwellings. To him, the number of bedrooms is the same at 6. As such, it would be his argument that there is no significant increase in the demand for public open space. Further, he submitted that the three dwellings on the land provide adequate open space: 53, 46 and 75 sq metres respectively.
He argued against Member Rickards' decision in Ahmed v Hobsons Bay CC [2008] VCAT 1673, regarding 33 David Street, Altona, where the Tribunal upheld Council's decision to require a 5% contribution. He disputed Member Rickards' finding in that review, which said:
1. The requirement for an open space contribution is supported by numerous policies contained within the Planning Scheme or adopted by the Council. The Responsible Authority has adopted in its policy a requirement that 5% be applied to the creation of two or more lots.
His disagreement with her findings were:
- A policy is not a requirement;
- He cannot find the "numerous" policies;

There is no policy in the Scheme for 5% in the Scheme but there may be an internal informal Council policy.

The criteria to establish an appropriate amount is the Subdivision Act 1988.
The Tribunal is satisfied that Council has done considerable work in the planning and provision of public open space, and committed substantial resources in the preparation of its open space strategy, the ways to achieve it and the necessary improvement works and costings. This has also been done for the Altona/Seaholme neighbourhood.
It is also satisfied that the redevelopment of the site will increase the demand on the use of public open space of the area. Mr. Eccles' argument is that there is no net increase in the number of bedrooms. According to the statutory declaration of Ms. Sharon Boag of 2 Gaetana Street, Avondale heights (a former tenant), Maureen Kennedy (a neighbour at 24A Grieve Parade), and Mr. Scarlett, there were six bedrooms in the 'single dwelling' before the redevelopment of the site. That may very well be their recollection of the then existing conditions. The Tribunal is not persuaded that the six bedrooms were lawfully established or that the house was meant to be a six bedroom house.
Council's records (as shown by the approved building plans received on 6 February 2009) show one the bungalow (abutting the carport) as a garage. This is confirmed by the Tribunal's review of the photographs contained in documents submitted in the 2004 Review. Those photographs clearly showed this outbuilding having a garage door. If the garage was converted to a two bedrooms independent unit (as is the evidence of the former tenant and Mr. Scarlett), it was done without adequate cooking and no laundry facilities for this unit.
The 'two bedrooms' in the second bungalow directly adjoining the main house were intended to be a family room and an additional room as approved by the building permit approved on 14 march 1980. Those rooms had internal access to the main house. Mr. Scarlett's layout plan shows these rooms no longer having internal access into the main house. That means there is no internal access from these rooms to the sitting room, dining room, bathroom and kitchen in the main house.
Another issue is that there is no longer a laundry for the six bedroom house as the laundry room in the original house (Building Permit No. 670 approved in 1959) has been enlarged and converted to a bedroom according to Mr. Scarlett's layout plan. If the building and bungalows were converted to become a six bedroom house for various tenancies, the premises would not have offered satisfactory living conditions and access to basic residential amenities.
The Tribunal is not persuaded that the redevelopment of the site and replacement of the former single dwelling would not result in an increase in the level of accommodation of the land. Rather, there is an increase in the number of dwellings and residential density.
The Tribunal now turns to the matter of whether the 5% is an appropriate rate. Mr. Eccles' submission is less than 1%.
There is policy reference for improvement for public open space in the Scheme. Council has prepared an open space plan with improvement works and costing identified for the Altona/Seaholme neighbourhood.
The review applicant in his application for review suggested 2%, and Mr. Eccles advised that he offered 3% at the failed mediation at the Tribunal.
Having considered the criteria in the Subdivision Act 1988 and the particular set of circumstances of this proposal, including the fact that there are existing public open space areas close to the site, that there will be an increase in the residential density of the land, that there is demonstrated open space improvement needs for the neighbourhood, the Tribunal considers a 3%, on balance, an appropriate figure.
The contested condition will thus be amended to require a 3% instead of 5%.

Mr. Eccles applied for costs against Council pursuant to Sec 109 of the VCAT Act for the amount of $3857, broken down into $600 for the failed mediation on 26 November 2008, his professional fees of $3000 for the hearing, and $257 for the lodgement of application of review.
His submission is based on two premises:
- Council has been unwilling to negotiate at the failed mediation, wasting his and the Tribunal's time;
- Council's 5% is untenable as there is no policy support.
As there was no forewarning of an application for costs, Mr. Wong was unable to seek instruction from Council. The Tribunal has indicated that Council will be given time to make a submission. Both parties agreed for the Tribunal to dispose of the costs application on paper.
As such, Council will be given 21 days from the date of this order to make a submission on the application for costs, and then the matter will be disposed of on paper.
The Tribunal, however, can advise Council that the mediation was a request made by the review applicant in his application for review. Council is already aware that it has advised the Tribunal, by its Practice Direction letter dated 18 August 2008, that mediation is not suitable. It appears that the Registrar proceeded with the mediation avenue on the strength of the request by the review applicant.

Based on the above reasons, the contested 5% is reduced to 3%.
Costs reserved.

[1] Permit No. P02.415 issued on 19 April 2004 Review P2010/2003, order dated 15 April 2004.

[3] P. 90 City of Hobsons Bay, Open Space Plan, February 2005.

[5] Relying on Agnew v Yarra CC [2008] VCAT 489 by Senior Member Byard and Barker Monaham Pty Ltd v Moreland [2008] VCAT 2432 by Member Rickards.

[6] Inland Consultants v Mildura City Council [2005] VCAT 955.

Environment Act 1987

Scarleett v Hobsons Bay CC [2009] VCAT 203

At a glance

Court

Decision date

Source

Judgment (25 paragraphs)

Scarleett v Hobsons Bay CC [2009] VCAT 203 (11 February 2009)

Parties

Legislation Cited (1)