19 The effect of Section 18(1A) is that the Council can only require a public open space contribution if, firstly, "it considers that, as a result of the subdivision, there will be a need for more open space". The question of whether there would be a need for more open space must be assessed by way of a number 6 possible tests. In this case, both Ms. Watts and Mr. Sang agreed that the subdivision would not increase the number of dwellings, the likely number of households or the likely future population living on the subject site. They also agreed that, on this basis, the question of whether there would be more need for public open space failed tests nos. (a), (b), (c) and (f). That leaves only the tests of sub-sections (d) and (e) to be considered.
20 There was some speculation as to whether the age-profile of the site's resident population might be different in the future from that of its past. For instance, it was suggested that some households might be younger than previously (e.g. single mothers or young couples seeking affordable housing). However, neither in her submission, nor in later discussion, did Ms. Watts suggest that this possible change in age profile would lead to an increase in the need for public open space and, in my view, if it were to tot be so the change would be negligible.
21 The only significant change that the subdivision would bring about is that it would reduce the areas of common open space and instead create an area of secluded private open space for each dwelling. There was no suggestion by Ms. Watts that this would lead to greater demand for or use of public open space in the site's vicinity. It seems as like as not that the new provision of secluded private open space for each dwelling would reduce the demand for more remote areas of public open space which might, in the past, have substituted for the lack of secluded private open space.
22 In effect, the subdivision would not lead to any effective change in population numbers and no significant change in the needs of this resident population for additional public open space, while it would provide a new form of open space in the form of secluded private open space.
23 The only way that the subdivision would potentially increase the need for public open space is if the existing areas of common property, a proportion of which is to be converted to areas of secluded private open space, provided an essential substitute for the use of public open space provided by Council. However, I was provided with no evidence as to how the areas of common open space might in the past have been used as a substitute for public open space, or how they might be so used in the future. From photographic evidence, these areas appear to provide a landscaped setting for the dwellings and do not provide for any structured or unstructured recreation. I do not consider that the use that past residents might have made of the areas of common property would have been any substitute for the areas of public open space in the site's vicinity, or elsewhere. Consequently, I do not have any basis to conclude that the subdivision would deny future residents any on-site equivalent open space experiences that they would in future have to seek elsewhere. By providing areas of secluded private open space for each dwelling, they will provide a hitherto unavailable benefit, which might arguably even reduce the need for further public open space.
24 In these circumstances, the question of whether there are adequate areas of public open space in the site's locality is academic. Council's submission, in seeking to justify the imposition of an open space contribution on the basis of the site's historical development, has failed to address the overall purpose of the open space contribution or any of the tests set out in Clause 18(1A) of the Subdivision Act 1988. These tests are to be applied to the subdivision that is the subject of this application, not to the effects that occurred 30 years ago, at the date of this development's completion. The tests are not retrospective.
25 In effect, in my view the wording of Section 18(1A) of the Subdivision Act 1988 actually prohibits the Council from making a public open space unless the subdivision itself would result in the need for more public open space. While there are many subdivisions that clearly create the need for public open space, this is not one of them.