Victorian Civil and Administrative Tribunal|2000-01-29

Spano v Greater Geelong CC [2000] VCAT 512 (29 January 2000)

1. This Application for Review is allowed in part and the decision of the responsible authority is varied. Pursuant to Section 85(1)(e), the Tribunal directs as follows:

(a) The present Conditions 1, 2 and 3 in Permit no.610/99 issued by the Greater Geelong City Council on 26 July 1999 and amended 6 October 1999 ("the permit") shall be deleted from the permit, and the following conditions substituted for them:

Drainage easements shall be created to the satisfaction of the responsible authority in favour of the City of Greater Geelong for the purposes of drainage pursuant to Condition 3. The easements shall be of adequate width and shall be located generally within or in the vicinity of Easement E-1 as shown on the plan prepared by Licensed Surveyor Grant St Quentin reference 3899/99 version 01 endorsed under this permit on 26 July 1999.

A drainage easement shall be obtained from the owner of any land through which the subject land is to be drained to the satisfaction of the responsible authority.

(b) Condition 6 shall be deleted from the permit, and the following condition substituted for it:

The owner of the subject land must pay to the Council a sum equivalent to 5% of the site value of all of the land in the subdivision as a Public Open Space contribution pursuant to Section 18 of the Subdivision Act 1988. The contribution will be payable prior to the issue of the Statement of Compliance.

Mr D Scally of Best Hooper, Lawyers, appeared on behalf of the Applicant.

Mr D Drew, Subdivisions Planner, represented the responsible authority (Council).

1. This is an Application for Review under Section 80 of the Planning and Environment Act 1987 ("the Act") in respect of the conditions imposed by the Greater Geelong City Council (the Council") as responsible authority under the Greater Geelong Planning Scheme on a permit for the subdivision of 132-140 Torquay Road, Grovedale into three lots.

2. The permit application has Council reference no.99/610. It describes the proposal as being for "3 lot subdivision per the attached plans to re-align boundaries between lots 2 & 3 and create lot no.1". The attached plan is Plan of Subdivision No PS 430125F ("the permit plan").

3. The application was referred to a number of referral authorities under Section 55 of the Act, including VicRoads (Roads Corporation). A permit, no.610/99, was originally issued on 26 July 1999 which omitted the conditions required by VicRoads due to a clerical error. When this was realised, the Council issued a new permit, with the same reference but with the annotation "Amended 6 October 1999".

4. This Application for Review was commenced on 22 September 1999, so that the permit which is the subject of review was the original version. The Applicant has not sought to contest the VicRoads conditions. Nothing turns on this for the purposes of the Application for Review, but it means there are two permits in existence, one of which does not contain conditions required by a referral authority.

5. All three lots front the Torquay Road (or Surfcoast Highway), which is a four lane dual carriageway road. The subject land is part of a Service Business zone located on the east side of the highway.

6. To the west of the highway, the land is zoned residential, and has been substantially developed into a residential area.

7. To the north of the subject land lies vacant land in other ownership, and beyond that again to the north is the Waurn Ponds Creek, which runs through a Public Open Space reserve. Mr Drew, who appeared for the Council, stated that the creek forms a natural boundary between Belmont and Grovedale.

8. Mr Drew explained that commercial development had been slow, and businesses had gradually located along the highway in the form of ribbon development.

9. The subject land falls generally toward the north-west, in the direction of Waurn Ponds Creek, which is the designated lawful point of discharge for drainage purposes.

10. The total area of the subject land is 11,618 sq.m. It is at present partly developed. "Stan's Discount Warehouse" is located on the proposed Lot 3. To the north of Lot 3, the proposed Lot 2 is the site of an existing Mobil service station. The service station is predominantly a concrete surfaced site, which drains at least partly to the road. Mr Scally, who appeared for the Applicant, submitted it is envisaged that it will remain under lease to Mobil for many years to come. Proposed Lot 1, which is an L-shaped lot lying to the north and east of Lot 2, is at present undeveloped.

11. Mr Scally submitted that the subject land came into the Applicant's ownership in 1985 upon being transferred from the ownership of Ivy Doreen Fogarty. At the time the land comprised Lots 5, 6 and 7, and was contained in three separate certificates of title. Lot 5 was contained in Certificate of Title volume 9164 folio 228, and had an area of 7,757 sq.m. Lot 6 was contained in Certificate of Title volume 9017 folio 243, and Lot 7 in Certificate of Title volume 9017 folio 241. Together Lots 6 and 7 had an area of 3,861 sq.m.

12. In 1992 the Applicant consolidated the titles to Lots 6 and 7, creating Certificate of Title Volume 10080 Folio 624. Lot 5 remained in Certificate of Title volume 9164 Folio 228. A plan of subdivision, no.PS432690L, which consolidated these two titles and resubdivided the land to create two lots of 3,968 and 7,673 sq.m. was certified as a "procedural plan" realigning boundaries by the Council on 10 November 1999. No open space requirement was made with respect to this plan. Mr Scally believes that this plan has not been lodged at the Titles Office.

13. Proposed Lot 3 on the permit plan is essentially the lot contained in Certificate of Title 10080 Folio 624 save that its area is increased from 3,861m2 to 3,968m2. A lot of identical dimensions, but with a different easement running through it, has already been certified on plan no.PS432690L. Proposed Lots 1 and 2 have areas of 4,053 and approximately 3,597 sq.m. (no area is shown on the plan for Lot 2).

14. Lots 1 and 2 on the Plan of Subdivision are slightly irregular in shape. Essentially this is because Lot 1 has been created around the site covered by the existing Mobil petrol station, which will be confined within Lot 2. The point of this resubdivision appears to be creation of an area to the rear of the Mobil site that can be separately developed pursuant to the warehouse permit already issued.

15. The fact that the proposed Lot 3 already exists on a certified plan has been treated as irrelevant. The Applicant can choose whether or not he wants to act on a certified plan. The plan he is pursuing at this hearing is the three-lot plan, PS 430125F, and that is the only plan under consideration.

16. Permits nos. 572/99 and 573/99 were issued on 1 October 1999, each for development of a warehouse, at 138 and 132 Torquay Road respectively. Both are on Lot 1 on the permit plan. A site plan, which was tendered by Mr Drew, shows one warehouse to be constructed immediately adjacent to Torquay Road in the northern part of Lot 1, and the second warehouse in the rear section of the lot, behind the service station. It was submitted that for practical reasons it is most unlikely this lot would ever be resubdivided.

17. Each warehouse permit contained conditions requiring consolidation of Certificates of Title volume10080 Folio 624 and volume 9164 Folio 228 (i.e. the whole of the subject land) or carriageway easements, and "creation of suitable easements and installation of formal pipe drainage system to approved plans created by a qualified engineer all to the satisfaction of the responsible authority".

18. A permit is required to subdivide land in the Service Business zone. The general guidelines for approval contained in Clause 18 require that in considering an application for permit, the Council (and hence the Tribunal) must consider:

· The State, regional and municipal planing policies.

· The purpose of the zone, reserved land or control.

· Any matter required to be considered in the zone, reserve or control.

19. The Responsible Authority must also consider a number of other matters, if appropriate, including:

· The existing use and possible future use and development of the land and all contiguous and adjacent lands.

· The provision of services of water, sewerage, drainage, electricity and gas.

20. Clause 18-2 of the Scheme contains subdivision guidelines requiring the Responsible Authority to consider, if appropriate, matters including:

· The requirement for and the location of public open space and its relationship to the surrounding residential development.

· The effect of the development on the use of adjacent land including the affect on any common means of natural or artificial drainage.

· The availability and provision of utility services including water, sewerage, drainage, electricity and gas.

21. The scheme does not contain any further guidelines for subdivision in the Service Business zone, other than the application must be referred to referral authorities listed in Clause 17 of the Scheme. Furthermore, the Service Business Zone does not have a minimum lot size requirement. Therefore, as Mr Drew submitted, each application for subdivision must be assessed on its merits.

22. It is proposed that the zoning of the subject land will be Business 4. There are no proposed overlays affecting the subject land.

23. The exhibited scheme does not contain a minimum lot size for the Business 4 Zone; however, it does contain more explicit decision guidelines for subdivision in the zone provisions.

24. Mr Drew advised that it is expected that the new Scheme will come into force within the next six months.

25. The Applicant seeks a review of the following conditions of the Planning Permit:-

Condition 3: An underground stormwater drainage system discharging to the Waurn Ponds Creek shall be constructed within easements to cater for all lots created by the subdivision and the surrounding developed and undeveloped area all to the satisfaction of the Responsible Authority.

Condition 4: Drainage easements in favour of the city of Greater Geelong shall be created on the plan submitted for certification to the satisfaction of the Responsible Authority.

Condition 5: Drainage easements or suitable agreement is to be obtained from owners of land north of the subject land to enable drainage of the subdivision to a legal point of discharge.

Condition 6: Public Open Space provision shall be by cash-in-lieu of land set aside in the subdivision at the rate of ten per cent by agreement.

26. The grounds of review in relation to Conditions 3 - 5 were:

(a) There is no nexus between the permission granted and the obligations imposed under the permit to the extent that those obligations can be ascertained from the permit conditions themselves; and

(b) The conditions are not imposed to advance any relevant planning objectives.

3. It would be unfair and unreasonable to require the owner to obtain easements from owners of land north of the application site in circumstances where the Council recently approved the subdivision of that land without requiring easements of drainage.

27. The grounds of review in relation to Condition 6 are:

1. The Responsible Authority has no power to impose a Public Open Space requirement exceeding either 5% of the land in the subdivision or 5% of the site value of such land.

2. Further, or in the alternative, as a result of the subdivision there will not be a need for more open space having regard to the relevant criteria under the Subdivision Act.

· The conditions contained in the permit are valid and are clearly intended to achieve planning objectives.

· Whilst the drainage conditions are general in nature, they are not "vague and uncertain" as contended by the appellant. The conditions are clearly intended to achieve a planning purpose, that is, requiring the lots to be fully serviced prior to sale.

· It has been an accepted practice for a number of years that the subdivider bears the costs of servicing land rather than those costs being passed on to the subsequent purchasers. Therefore, the Responsible Authority requests that the permit be cancelled under the provisions of Section 85(1)(g) of the Planning and Environment Act 1987 if the conditions are found to be invalid.

· The 10% public open space requirement has a strategic planning basis and agreements implementing it have been accepted by subdividers for a number of years. The Responsible Authority has acted to include this requirement in the new format planning scheme which was originally anticipated to be approved by the end of 1999.

· Further, the subdivision meets the criteria for a public open space contribution to be required under the Subdivision Act 1988.

· The owner wishes to subdivide the land but does not wish to provide the services necessary for the further development of the land; and this approach is contrary to the intent and purpose of the Development Contributions provisions of the Planning and Environment Act 1987.

29. It was the Council's submission that the subdivision provisions of the Act, Planning Scheme and Subdivision Act 1988 reflect a policy that lots will be serviced at the expense of the subdivider prior to sale. It would perhaps be more accurate to say that the policy is that provision must be made for servicing prior to sale and is the responsibility of the subdivider. However, the policy is implemented though an conditional power which may be exercised subject to certain conditions being met. This is Section 62(5) of the Planning and Environment Act 1987, which provides:

"In deciding to grant a permit, the responsible authority may -

(a) include a condition required to implement an approved development contributions plan; or

(b) include a condition that specified works which the Responsible Authority considers necessary as a result of the grant of the permit -

(ii) be paid for wholly by the applicant or partly by the applicant where the remaining cost is to be met by any a minister, referral authority, public authority or council providing the works."

30. The conditions are clearly intended to achieve a relevant planning objective, that is, appropriate provision of infrastructure, in accordance with the matters to be considered under Clause 18. Further, ensuring that works necessary as a result of the grant of the permit should be provided or paid for either by the Applicant alone, or by the Applicant and a servicing or planning authority is a planning objective recognised in the Act through these provisions. This alternative applies where there is no relevant approved development contributions plan.

31. Mr Scally also submitted that Section 62(6) of the Act, which provides as follows, is relevant:

"The responsible authority must not include in a permit a condition requiring a person to pay an amount for or provide services or facilities other than--

(a) a condition required to implement an approved development contributions plan; or

(b) a condition requiring services or facilities to be provided in accordance with an agreement under section 173."

32. No agreement under Section 173 is sought. However, in my view, the requirements are in the nature of provision of works under Section 62(5), rather than "services or facilities" under Section 62(6).

33. Mr Scally submitted that at present, there is no approved development contributions plan under the Planning Scheme. Mr Drew submitted that, although there may be no approved development contributions plan formally identified as such, the Waurn Ponds Valley Structure Plan and agreements pursuant to it could be described as an early type of development contributions plan. He relied on the "Guidelines for Development Contributions" published by the Office of Planning and Heritage, December 1995 for the criteria that a development contributions plan must meet. These are need, equity, accountability and nexus, being the same four criteria identified with respect to infrastructure requirements imposed by way of conditions in a subdivision permit in Eddie Barron Constructions Pty Ltd v Shire of Pakenham (1990) 6 AATR 10. Mr Drew submitted that the criteria were met by and under the Structure Plan.

34. Unfortunately for Mr Drew's argument, Part 3B of the Act, under which development contributions plans are prepared and approved, contains a definition (set out in Section 46H). This is:

"approved development contributions plan" means a development contributions plan which forms part of an approved planning scheme"

35. Although the Waurn Ponds Valley Structure Plan may share certain features with a development contributions plan, it does not form part of the approved Planning Scheme. It therefore cannot be applied directly as an approved development contributions plan for the purposes of infrastructure contributions.

36. I consider that Section 62(5) has to be applied quite strictly in confining contributions which may be imposed under Section 62(5)(a) to "approved" development contributions plans, because of the lack of a requirement (found however in Section 62(5)(b)) where such a plan exists, that the relationship between the specified works and the grant of the particular permit be demonstrated. This may be justified in the case of an approved development contributions plan, because under Section 46K of the Act, in the process of obtaining approval, the plan must meet a certain standard which includes relating the infrastructure required for the area to the proposed development of land in the area, and otherwise meet the Eddie Barron tests. It must also be exposed to the Planning Scheme amendment process, including the public participation procedures in Part 3 of the Act. In the absence of an approved plan that has met the requirements of Section 46K, the relationship of the required infrastructure to the permit has to be shown on a case by case basis.

37. The obligations imposed under Conditions 3-5 of the permit require the lots to be serviced by underground stormwater drainage contained within appropriate easements.

38. Messrs Drew and Scally both referred to the "conditions test" set out in the Eddie Barron case in relation to requirements under Section 62(5).

39. Mr Scally argued that the existence of the requisite nexus between the subdivision and Conditions 3-5 was not shown. He submitted that the areas which were to be serviced by the required drainage easements and stormwater drainage system had not been specified, and without this information, it is impossible to determine whether the test of equity is met; the vagueness of the wording left open the possibility that the easements proposed may be required to service a wider area than the land included in the subdivision. The absence of a specific location proposed for the easements, their dimensions and other details are also challenged. Further, Mr Scally argued that Council's failure to require an easement to be created when the land to the north of the subject land had been subdivided some years ago should not have to be made good at the expense of his client.

40. Moreover, the requirement that an easement be obtained over the land to the north of the subject land was objected to on the ground that it is ultra vires. Mr Scally relied on the case of Richmond Assembly of God Inc v City of Richmond (P88/1925, mentioned 2 AATR 3). He stated that efforts to reach agreement with another owner have been unsuccessful. The Applicant wishes to have other options available, such as draining over the land to the east.

41. In this instance, the Council is acting as the drainage authority as well as the responsible authority for the planning permit. Mr Drew submitted that until detailed drainage specifications are submitted and assessed, the exact details of the location and width of drainage easements cannot be specified.

42. The Council accepted, when the plan was submitted to it, that once a permit was granted, the specific drainage requirements will be determined as part of the submission of an engineering plan for works under Section 15 of the Subdivision Act 1988. As a result, Council did not require applicants to provide engineering details prior to the issue of a permit. It followed that the response obtained by way of permit conditions has been open ended.

43. Mr Drew explained the circumstances of the subdivision of the land to the north, producing copies of relevant documents in his book of Appendices. The subdivision created only one new lot, which was for the purpose of transferring it into public ownership as part of the Waurn Ponds reserve. In the circumstances, other infrastructure requirements had been waived. I do not find this to be an inequitable treatment compared to the proposed subdivision, or in any way a matter that should justify relieving the Applicant from infrastructure responsibilities in the present instance.

44. I do not consider that the Applicant is assisted by the Richmond Assembly of God case. The facts as recited there related to a requirement for entry by the permit holder into an agreement with a neighbouring owner to do with car parking. The objection to it was that the obligation placed on the permit operator was a matter which was beyond his control to fulfil. Alternatively, it placed him in a position of weakness in negotiations that was inequitable.

45. Neither consideration applies in the case of an easement of drainage. Section 36 of the Subdivision Act 1988 applies. I will not set it out here; but its purport is that the Applicant is in a position to commence a procedure that will, if successful, result in leave being given to him to compulsorily acquire the easement, and pay no more than compensation in accordance with the Land Acquisition and Compensation Act 1986. Section 36 continues a long history of statutory rights for acquisition of interests over land owned by others in order to facilitate the economical and efficient subdivision of land.

46. I accept that an easement over the rear part of the subject land, continuing through the land to the north and then to the creek, overlapping or beside the sewerage easement shown on the proposed plan of subdivision, would be the most direct route for drainage to take to the creek.

47. Mr Drew stated that the applicant had not submitted any engineering plans for the responsible authority to consider alternative means to drain the site since the issue of a permit until 11 February, 2000. The Council's engineers have not had sufficient time to assess the plans. As a preliminary response, it is considered that a detention tank and pump system, proposed by the Applicant to discharge stormwater to the kerb and channel in Torquay Road, is unlikely to be acceptable. However, the Council is prepared to consider practical alternatives.

48. The Council is of course correct in submitting that the nexus between subdivision and the provision of services such as stormwater drainage is well defined historically and has been accepted as a standard subdivisional requirement for many years. Mr Drew agreed when I suggested that the water that Council was looking to drain from the proposed subdivision was water that fell onto the subject land itself and needed to be drained away, and also water that had rights under the Water Act 1989 to drain over the subject land, which rights also had to be accommodated by the owner of the subject land. The Council did not intend to create an area drainage scheme at the sole expense of the Applicant by its wide conditions.

49. If the works are not carried out as part of the subdivision, then the future provision of drainage will be an impost on the future owners within the subdivision, either when the land is developed with buildings or via a Special Rate or Special Charges Scheme under the Local Government Act 1989. The permits already granted for the development of two warehouses contain drainage conditions. These both prohibit the drainage of stormwater from the subject land (being the site of the warehouse in each case) onto adjoining properties, and require easements and a pipe drainage system to be approved. The intention was clarified by an engineer's note to the effect that drainage should be collected on the site and then discharged through the required drainage system. Some words may have been omitted in the final wording of those Conditions. That does not matter for present purposes, as the point is that drainage is going to be required in conjunction with future development, even if not done now before the subdivided land passes into separate ownership.

50. If the three lots pass into separate ownership, as must be envisaged when the land is sought to be subdivided, the achievement of drainage of each lot is complicated by the fragmentation of the subject land. It is more efficient to arrange for the proper easements to be created as part of this plan of subdivision, and to provide for the passage of storm water through the easements to the lawful point of discharge, than to avoid the drainage issue until one of more of the new lots has passed into other ownership.

51. Discussion of the rephrasing of these three Conditions in a manner that satisfactorily overcame the objections taken by the Applicant took place at the hearing. Conditions 3, 4 and 5 will be deleted and replaced by modified conditions that are acceptable to both parties.

52. The first leg of Mr Scally's argument in relation to this issue is simply that the open space contribution required by Condition 6 exceeds the limit available under the Subdivision Act 1988. Section 18 of that Act provides:

"(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".

53. In this instance, the Council has selected the option of cash. But it is plain under Section 18 that whether land, cash, or a combination of both is sought, the total cannot exceed 5% of site value unless a different contribution is specified in the Planning Scheme.

54. A further argument as to what the Condition actually meant was raised by Mr Scally. The Condition is not well expressed. It will be recalled that it is:

"Public Open Space provision shall be by cash-in-lieu of land set aside in the subdivision at the rate of ten per cent by agreement."

55. The composite word "cash-in-lieu" is often used as an adjective to describe a scheme whereby under the relevant provision, there is a primary land contribution requirement, but it is accompanied by a discretionary power under which instead of land, a cash payment requirement may be substituted. This is not strictly correct in the case of an open space requirement, as Section 18 places equal weight on land and cash, so that there is no primary requirement that land be set aside. There is accordingly no need to say that the cash contribution is required in lieu of land; either or a mixture of both are equally available to the Council. The use of the "adjectival" form where this is inappropriate grammatically in the Condition certainly does not help interpret it; but I think it is clear enough what this part of the condition means.

56. More challenging is the reference to "ten per cent by agreement". The Applicant has not agreed to pay 10%.

57. Section 18(4) of the Subdivision Act provides:

"The applicant may agree with the Council to set aside or pay a percentage other than the set percentage."

58. I do not consider that this authorises the Council to require an applicant to enter into an agreement to pay an amount that would not otherwise be justified under Section 18, and Mr Drew did not suggest that this was what Condition 6 achieved.

59. It is by no means clear from the permit itself what agreement is meant. The meaning was explained by Mr Drew in his argument in support of the 10% requirement. Before passing to this, I will indicate that although the Condition is badly worded, I am satisfied that the Council would not have issued the permit without this requirement, so that the situation is one where I would seek to amend the Condition so that it was clear and valid, rather than adopting either of the other options, which are severing the condition from the permit (as Mr Scally submitted would be appropriate), or cancelling the permit under Section 85(1)(g) of the Act (the latter being the course which Mr Drew submitted should be followed if the Conditions were found to be invalid).

60. Mr Drew outlined the background to the imposition of Condition 6, which I will summarise. I accept that this explanation gives the reason for the Council's adoption of a condition requiring an open space contribution in excess of 5%.

61. A ten per cent public open space contribution was the requirement resulting from the adoption of the Waurn Ponds Valley Structure Plan.

62. The Geelong Regional Planning Authority, the former strategic planning body for the City of Greater Geelong, prepared the Waurn Ponds Valley Structure Plan in March of 1977. The Structure Plan contained a generous open space reserve along the Waurn Ponds Valley as an integral part of development of the area for urban uses. The creek valley was recognised in the Structure Plan study as an opportunity for acquisition of a major open space spine, which would be a strong element in the southern growth sector. The study envisaged a continuous chain of open space and recreational facilities to serve the future community, incorporating a range of facilities to include regional as well as a focus for local needs. The plan was unanimously supported by affected landowners, even though it called for contributions from landowners on subdivision of double the normal maximum contribution of land or cash towards public open space. It was implemented through written agreements between the former City of South Barwon and the respective landowners.

63. On 7 June 1977, the previous owner of the subject land, Ivy Doreen Fogarty, entered a written agreement under seal with the City of South Barwon in respect of Crown Allotments 1, 2, 3, 4, 5, 6 and 7 of Section 2A, Parish of Conewarre. The agreement was in the common form adopted throughout the area. This is the agreement to which Condition 6 referred.

64. Mr Scally submitted that this agreement did not in fact refer to a 10% cash payment in lieu of provision for public open space.

65. At that time, a Section 173 agreement, which would be registered against the title to the subject land, was not available under the Act as a means of creating an obligation by agreement that would bind successive owners ("run with the land").

66. The 1977 agreement signed by Mrs Fogarty recited that the owners wanted their land rezoned, subdivided, and further developed in accordance with the Waurn Ponds Study Area Structure Plan. It further recited that the Council wanted to provide a network of public open space in the Waurn Ponds Study Area for public resort and recreation. Finally, it recited that the owners were prepared to contribute an extra one-twentieth part of the total area of land being rezoned as desired by them, in addition to the land which would have to be provided under Section 569B(8A) of the Local Government Act 1958 as places of public resort and recreation.

67. The contribution at that time under the Local Government Act was a standard one-twentieth or 5%. The additional contribution offered took the total to 10%. The agreement was therefore that the owners offered to pay twice the normal contribution, and that offer was accepted by the Council. Further provisions refer to identifying whether the contribution was to be in land or cash.

68. The agreement on the Council's part is to use its best endeavours to have the land rezoned in accordance with the Structure Plan as soon as possible; and then to allow subdivision to take place in accordance with the Structure Plan. The owners agreed that if they did not comply with a request for a contribution under the agreement, the Council could refuse to seal their plans of subdivision.

69. I do not accept that the agreement makes no reference to a 10% cash payment in lieu. Not only do Clauses 3 and 4 make provision for cash payments, but the reference to what was provided for under the Local Government Act brings in the Council's discretion under Section 569B(8A) of the old Local Government Act (since repealed and replaced) to require security for a cash payment to be given before the plan was sealed. Failure to comply with the requirement was a ground on which the Council could refuse to seal the plan.

70. The agreement in my view sets out plainly that the rezoning to residential, commercial and industrial uses went hand in hand with the open space reserve, as two integrated aspects of the same Structure Plan. The rezoning and subsequent subdivision would fund the creation and development of the reserve. The present Applicant may not be a signatory to the agreement; and indeed Mr Scally stated that his instructions were that his client had not been informed of it prior to purchase. But in having been able to buy and develop this land with a Business zoning, and with a fine open space reserve nearby, the Applicant is getting the benefit of it. It is noted that the Applicant and three other members of the Spano family have been registered proprietors of what is now Lot 5 since 1985. The full 10% was payable at that time, as the Subdivision Act 1988, with the present strict limitations on open space requirements, commenced in October 1989. The Applicant has been registered proprietor of the balance of the subject land with another member of the Spano family since at least 1992, when a consolidated title was issued.

71. The Structure Plan at pages 115 and 116 in the section "Strategy Implementation" recognises the contribution to the implementation of the planning strategy for the Waurn Ponds Valley by the land owners agreement to contribute more than the statutory five per cent. The report concludes:

"Without the agreements being successfully concluded, the public open space strategy, which is so important in the overall strategy, will be financially unobtainable. Planners involved in the project acknowledge the foresight of land owners, who have become a crucial element in deciding the future of their area:"

72. The Structure Plan has guided planning in this area for over twenty years, and during this time the Responsible Authority has been consistent in its application of the ten percent public open space contribution it required from subdividers. As subdivision has progressed since the inception of the scheme, a major regional public open space network has been gradually created.

73. All of the land required for the Waurn Ponds Creek Valley open space spine has either been acquired or provided by subdivision from Barwon Heads Road in the east to Pioneer Road in the west. A relatively small area remains to be acquired, at the western end of the spine.

74. The Responsible Authority has pursued a program of capital improvements to the open space spine since the adoption of Structure Plan in the mid 1970s. Under this program, the continuous public open space spine has been partially developed for a variety of purposes, such as cycle and pedestrian paths and various active and passive recreation activities. Facilities such as a baseball diamond, tennis courts and clubrooms have been provided adjacent to Pioneer Road.

75. Mr Drew referred to the population projections for the area, and for the need to provide additional facilities within the reserve area for the anticipated increase in population. The existing facilities are considered to cater for the existing density of development in the area; however the Council submits that additional facilities will need to be provided.

76. A further relevant provision is Section 20(2) of the Subdivision Act 1988, which governs how money obtained by way of open space contributions must be spent. This identifies contributions as a source of funds for capital improvements. Without setting out the whole sub-section, the gist is that the cash must be used to -

· buy land for use for public recreation or public resort, as parklands or for similar purposes; or

· improve land already set aside, zoned or reserved (by the Council, the Crown, a planning scheme or otherwise) for use for public recreation or public resort, as parklands or for similar purposes, or with the approval of the Minister, improve land already used for such purposes although not zones or reserved.

77. The Council's commitment to provision of upgraded or additional facilities was shown by its expenditure of $240,000 last financial year, to upgrade a skateboard park. This is a facility directed at younger members of the community for a new sport that is often somewhat overlooked in open space planning, and shows the Council's continued intention, originally reflected in the Structure Plan, of making the open space resource available for a wide variety of forms of recreation, which will benefit all sectors of the community, although the actual nature of the activities which people enjoy may change from time to time. A further $50,000 is budgeted for this park in the current year. This expenditure accords with the requirements of Section 20(2).

78. There is no doubt, as Mr Scally conceded, that the Waurn Ponds reserve constitutes an outstanding community resource.

79. There is clearly a strategic planning policy justification for the requirement of a ten per cent public open space contribution.

80. The Structure Plan is proposed to be implemented in the new VPP Planning Scheme. A ten per cent public open space contribution is included under the provisions of Clause 52 of the new Scheme. Thus the increased contribution maximum will satisfy Section 18(1) of the Subdivision Act 1988. The area which will be affected by the contribution requirement includes all land in the Waurn Ponds Valley Structure Plan area which had not made any previous contribution at the time preparation of the new format planning scheme amendment.

81. I agree with the AAT's comments on subdivision and provision of the open space in the Waurn Ponds Valley in the case of Rosemeier v City of Greater Geelong (Appeal No. 1996/45189, 1996/45713 and 1997/24742, 13 & 14 May, 1997), quoted by Mr Drew. The Tribunal stated:

"The evidence demonstrates how planning and policies in relation to the retention and acquisition of open space along the creek were developed and make known to owners and developers in the area. This involved persuading such parties to agree to giving up approximately twice the statutory maximum of land being subdivided for public open space.

That program including the relinquishing of twice the statutory requirement for public open space along the creek, has been surprisingly successful. Owners and developers were persuaded to make such sacrifices in the public interest. They and their purchasers could be forgiven for feeling aggrieved if the purposes they contributed to are now undone."

82. The Panel and Advisory Committee reviewing the new VPP Scheme also had occasion to consider the contribution requirement. In its report, the Panel stated:

"It is not relevant to the Panel's role in considering the new format Greater Geelong Planning Scheme to consider the validity of the agreement the submittor refers to. Rather, the panel must consider whether the 10 per cent contribution required by the Schedule to Clause 52.01 of the Planning Scheme is strategically justified and if so, whether it should apply to the subject land.

...The Panel is satisfied that there is a reason for this requirement established in the Waurn Ponds Valley Structure Plan 1977, which is comprehensively described in the Council's Strategic Assessment to Submission OSI. Moreover the Council's strategies have been consistently implemented over a period of 20 years, with the result that the open space spine along the Creek has largely been realised. Only a few sections at the western end remain to be incorporated.

...The Panel therefore finds that there is a strategic justification for the 10 per cent requirement in the Schedule to Clause 52.01 and that this encompasses the subject land. The Panel therefore supports the ten per cent recreation contribution...."

83. The new Scheme has not yet been adopted by the Responsible Authority. I accept that it is very unlikely that these provisions would not be adopted, as they reinforce a policy which has been in place and implemented for nearly 25 years and which has been endorsed by the Panel.

84. However, the words of Section 18 of the Subdivision Act are clear: If a requirement for public open space is not specified in the planning scheme, the maximum contribution that can be required, whether by land or cash, is "a percentage set by the Council not exceeding 5 per cent". The policy and the Structure Plan are well established; the new Planning Scheme will have a requirement specified in it; but the present Planning Scheme does not. The limitation appears in terms that do not allow for a requirement specified "under" or "pursuant to" the Planning Scheme; it must be specified in the Planning Scheme. The Council is not, in the present circumstances, able to enforce a 10% contribution through this permit condition.

85. Mr Scally further argued that even five per cent was too high a contribution.

86. After the restrictions set out above, Section 18 of the Subdivision Act 1988 goes on to a further limitation:

"(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."

87. I agree with Mr Drew's submission that the considerations listed in Section 18(1A) of the Subdivision Act support the assumption that development will generally accompany subdivision as part of the overall development process. Most of the criteria are related to development and use, rather than to subdivision or division of ownership. The form of development and use promoted by the purposes of the zone can be assumed to follow subdivision, if nothing specific about the future of the subject land is known. It can certainly be assumed in this case that the purpose of the subdivision is to facilitate further development of the subject land, as such plans have already been pursued to the point of permits having been obtained.

88. I accept that the subdivision generates a likelihood that a greater number of people will be drawn to the land than prior to the subdivision, as a consequence of the subdivision and anticipated future development. The proposed use and development would generate a higher level of use of existing open space than the present use and development, having regard to the fact that the proposed new Lot 1 is presently vacant land, and is proposed to be developed with two warehouses.

89. Mr Drew referred to the case of All General Surveying Pty Ltd v City of Geelong (Appeal No 1992/15100, 29 July 1992) in which the Tribunal stated:

"It seems to the Tribunal that while the demands upon open space areas... for direct use as recreational venues may be less than those upon open space areas in residential neighbourhoods, industrial and commercial developments might be seen as creating greater indirect or spatially diffuse demands upon open space to serve landscape or other functions; the intensity and "artificiality" of industrial and commercial developments is notionally greater than residential development by their greater concentration of buildings, population and traffic."

90. I accept Mr Scally's submission that the new level of direct use by occupants of the lots produced from the subject land would still not be a very high one, compared for example to a supermarket or a large office building. Modern warehouses do not require large numbers of staff, as Mr Scally pointed out. However, it must be assumed that commercial and industrial subdivisions are capable of generating a need for a 5% requirement, because that is the maximum for these categories of subdivision. No distinction is made between them, or between these and residential subdivisions, for the purposes of either the maximum or the criteria which must be considered.

91. The more intensive forms of commercial use will not be available within the relevant zone, because its purpose is "To provide for service industry, light industry, business, and certain semi-retail uses generally located adjacent to the Central Business, District Business and larger Local Business Zones." What is permissible is limited accordingly. But no distinction is made in the maximum open space levy as between one zone and another. It could be expected that this type of distinction is already reflected in Section 18 because the 5% maximum contribution is related to site value of the land.

92. I do not know whether it is correct to describe the sort of need described in All General Surveying Pty Ltd as "indirect". It is not necessary to consider whether open space is a good thing; the fact that this power to levy land or cash to provide it implies that this is recognised by the Act. The form in which the benefits of available open space may be best enjoyed may vary from one area to another; but if commercial land is to be subject to the levy, it must be assumed that commercial land is seen to benefit from what the levy provides, even if the people who come to the site only work there, or only visit to make a purchase, and do not necessarily use the sportsgrounds, walking tracks and so on. The community benefits from the provision of these facilities in a planned and orderly way, in conjunction with development in the Structure Plan area.

93. The provision of further development of a commercial nature, whether it will be the permitted warehouses or some other form of commercial development, is part of the further development of the community. The suburban area is expanded by the development of the subject land. More people are attracted into the area by this expansion. Vacant land will be converted to an extension of the area where people work and shop, across the road from where some of these people will be living. The levy is a mechanism for ensuring that a fair share of the open space needs of these people is met across the board. Section 18(1A)(a), (b) and (c) could be considered to deal generally with this issue.

94. I have looked at the car parking provision shown on the site plan as an indicator of the level of activity planned for, both as regards new warehouses and the existing Discount Warehouse on Lot 1. The combined parking for the two new permitted warehouses is shown as 24 spaces. The existing warehouse is shown as having 20 spaces. No parking is shown on the service station site, but vehicles of all descriptions would of course be constantly coming and going all day. The plan indicates that up to 44 cars, meaning more than 44 people, plus the numbers generated by the service station, may be expected to be present simultaneously at the subject land if subdivided and developed as proposed.

95. In my view, this shows that planning for an increase in intensity of use of the subject land has not taken place on the basis of just one or two more people. In addition, the use of the service station will intensify, as part of that site will be subdivided off to form part of the new Lot 1, leaving all the activity that currently takes place on this site concentrated into a substantially smaller area. I further consider that the fact that the service station and the Discount Warehouse are operating without an open space contribution ever having been made in respect of the subject land does not reduce the need for it, but reinforces the desirability of having proper provision made without further delay. The site plan shows the entire sites for the two existing uses not occupied by buildings to be almost unrelieved concrete, and the intended new warehouse sites appear to be much the same.

96. A criterion related to the nature of development at the subject land in found in Section 18(1A)(e), which looks at the amount of land within the subdivision which is likely to be used for places of resort and recreation for lot owners. The need generated on this criterion would be relatively high, having regard to the large areas intended to be taken up by warehouses, which are likely to be very simple structures surrounded by concrete associated with parking and access ways, with very little attractive and usable recreational space, as illustrated on the site plan for proposed commercial development produced in relation to the two warehouse permits. This shows two very modest landscaping strips, and three small areas for clumps of plants, for the entire area of the subject land. The main purpose of these, judging from their location and form, would be to provide some shade for the car parking areas. Although the conditions of the permits include a landscaping plan requirement, the land available after car parking and access ways have been deducted will not be significant.

97. In relation to Section 18(1A)(d), Mr Scally was able to point to the very desirable level of open space, both in terms of area and development for a variety of recreational uses, that already exists. The difficulty that the Council faces as it nears the end of its acquisition program after consistent application of the Structure Plan for over 20 years is that there is already so much in place under it, that if every last element of the plan has to be justified with respect to every application, the nexus between increasing intensity of use and need for additional contributions is very hard to show.

98. But obviously the existence of most of the overall open space as planned, and its already substantial development, cannot be allowed to defeat the validity of requirements for any further contributions. If that were so, no open space program could be fully completed in accordance with the strategy for its creation and development. The argument that there was already so much there would always defeat the last parts of it.

99. The purpose of the contribution requirement is to continue to implement the Structure Plan, both as regards completion of the identified program of acquisition and the capital works program, where the planning structure is already in place and has been acted on to the public good over many years. I consider, in these circumstances, that the situation is so strongly comparable to having the percentage contribution specified in the Planning Scheme that great emphasis should be given to the last criterion in Section 18(1A), "any policies of the Council concerning the provision of places of public resort and recreation". This emphasis is also justified because the Council is so close to having a contribution specified in the Planning Scheme. From specification in a Structure Plan prepared under the Planning Scheme and implementation through an agreement with a previous owner of the subject land, the policy has been upheld and will be implemented in the new Planning Scheme, so that it will meet the test in Section 18(1) for a contribution in excess of 5% within some six months. On the policy criterion, the Council is all but able to impose a maximum of 10%.

100. I do not consider that all the various criteria listed in that sub-section must be met before a requirement can be made. The Section requires that Council form the view that as a result of the subdivision, there will be a need for more open space; and that in considering whether the need will exist, it must have regard to each of the listed criteria. But that does not mean that, standing in the Council's shoes for the purpose of this Application, I have to find that a requirement is justified against every one of the criteria.

101. The Council, and the Tribunal, may find that the requirement is justified on some criteria, but not others. In my view, that should be one of the matters weighed up when the amount of the contribution is set. It does not remove the Council's discretion to make a requirement.

102. In adopting the 5% maximum, I am compelled by the wording of Section 18. In not reducing the contribution below 5%, I have given greatest weight to the policy criterion in Section 18(1A)(f). If the sole criterion were the one in Section 18(1A)(d), I would have difficulty justifying a 5% contribution. But I have had regard to all the criteria, as required by the sub-section. Overall, I am of the view that the contribution should be greater than 5%, but the Tribunal is bound by the statutory maximum. I will order accordingly.

103. As a matter of equity, it is uncomfortable to relieve one owner of a requirement that has been the standard for the area, consistently applied to others, over so many years. The results of the Structure Plan and the contributions by the other owners are universally praised, and will be made available to this owner - both through the high quality open space reserve already developed, although still in an incomplete state, and whatever enhancement that proximity to the reserve gives to the land value. I agree with the opinion of the Panel, in its report on the VPP Planning Scheme (at p. 317):

"The consolidation of an open space spine along the Waurn Ponds creek has almost been realised with the benefit of the 10% contributions of the landowners. For consistency with other landowners it is not unreasonable for the owners of the remaining few unsubdivided lands to be required to make the same 10% contributions. The Structure Plan acknowledges the agreement to this approach by the landowners as part of the rezoning proposals for the Waurn Ponds Valley."

104. I will add a comment about the number of "permits" attached to this land. The orders which I have made will result in the issue of a new permit with amended conditions. This means the existing permit will be rendered inoperative. The original permit document, which had to be amended by the present permit, has never been cancelled. I consider that it is undesirable to have three permits, all apparently quite valid but with different conditions and dates, simultaneously in existence for the same subdivision. The earlier documents will no longer be "the permit" once the new permit is issued pursuant to this order. The new permit will have the same reference number, related to the permit application. To cancel the old permit documents is not a matter of requiring cancellation pursuant to Section 87 of the Act, because the same permit, arising from the same application, will still be in existence in an amended form. I do not see that it is necessary to have the earlier permit documents cancelled by a combination of a condition under Section 62(2)(b) and Section 87 of the Act; but it would be desirable to have the obsolete documents called in for cancellation by the responsible authority as a purely administrative function related to their replacement by the new permit when it is issued.

Environment Act 1987

Acquisition and Compensation Act 1986

Spano v Greater Geelong CC [2000] VCAT 512

At a glance

Court

Decision date

Source

Judgment (167 paragraphs)

Spano v Greater Geelong CC [2000] VCAT 512 (29 January 2000)

Parties

Legislation Cited (4)