Villawood Homes v Greater Geelong CC [2006] VCAT 2041

The Responsible Authority is directed under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987 to issue a permit which allows the subdivision of land at 432-440 Latrobe Terrace, Newtown, in accordance with the endorsed plans and subject to the conditions contained in the Notice of Decision to Grant a Permit No. 310/2006 issued by the Responsible Authority on the 5th July 2006 modified by deletion of Condition No. 3.

Mr. Anthony Sang, town planner, of St. Quentin, surveyors, town planners and development consultants.

1 This is an application for review that has no merit under the relevant legislation, being the Planning and Environment Act 1987 and the Subdivision Act 1988.

2 The permit application sought to subdivide land containing a number of long-existing, small, semi-detached dwellings situated on one title and without any areas of secluded private open space. There is to be no change to the number or size of the dwellings. Additional parking is to be provided and each dwelling is to be provided with a small area of secluded private open space.

3 The review sought to remove a permit condition requiring a cash contribution of 5% (orally reduced by Council's officer to 2%) of the site value.

4 The site contains existing development consisting of 22 dual-occupancy bed-sitter dwellings that were constructed about 1970. The key feature of the subdivision is that it would create a separate, though small, lot for each dwelling. Because of the small size of the dwellings, the overall site density is relatively high, occupying a site that would have contained about single 8 dwellings under the densities prevailing in the locality.

5 The schedule to Clause 52.01 of the Greater Geelong Planning Scheme does not include any specific rate for open space contribution in relation to the subject site. Section 18(1A) of the Subdivision Act 1988 is therefore applicable.

6 Section 18(1A) of the Subdivision Act 1988 provides that the Council "may only make a public open space requirement if it considers that ...... there will be a need for more open space." The subdivision would not result in any increase in the number of dwellings and no significant change in the number of on-site occupants. In my view, there was no basis on which one might conclude that there would be any need for more open space and, consequently, the essential requirement of Clause 18(1A) of the subdivision act was not met. I therefore directed that the relevant permit condition be deleted.

7 The site is a single rectangular lot on the western side of Latrobe Terrace, Newtown. It contains 22 semi-detached dwellings, constructed about 36 years ago for some unidentified public authority. These dwellings were described as bed-sitters, with the suggestion that they had been provided to accommodate war-widows.

8 Opposite the site across Latrobe Terrace is Cardinia Park, a large regional area of public open space containing several sports grounds, swimming complex, informal parkland and a range of other recreational facilities. There is also a small area of passive public open space to the site's south-west and extensive areas of parkland along the northern side of the Barwon River, a little distance to the south.

9 The proposal is to subdivide the land so that each dwelling is contained on a separate title, including a small area of private open space. Each lot is to be provided with a separate parking space. Small areas of common property would provide common areas of public open space in addition to access roads.

10 The land is zoned Residential 1 (Clause 34.01) and is within a Design and Development Overlay (DDO14). The subdivision must comply with the provisions of Clause 56. Clause 52.01 creates certain opportunities for Council to require a public open space contribution.

11 Relevant local strategies are Clause 21.15 - Open Space. However, this strategy does not provide any guidance of specific relevance to this site or this review.

12 A permit is required to subdivide land under the provisions of the Residential 1 Zone and the Design and Development Overlay.

13 The basis of Ms. Watts submission was that the existing development of 22 dwellings is at a significantly higher density than that of the prevailing single-dwelling developments in the site's locality. She estimated that, instead of 22 dwellings as now exist, there would otherwise have been only about 8 dwellings on this site. She submitted that the existing development had resulted in a greater demand for public open space than would otherwise have been the case and that, on this basis, some contribution towards the provision of improved public open space was warranted. She further submitted that Council had clearly stated policies and budget programs to upgrade the facilities of Cardinia Park, opposite, which would contribute to the increased demand for public open space resulting from the present development.

14 Mr. Sang submitted that, as the schedule to Clause 52.01 in the Greater Geelong Planning Scheme does not specify an amount of money, the only discretion available to Council to require a contribution derives from Section 18(1A) of the Subdivision Act 1988. Mr. Sang submitted an assessment of the effects of the proposed subdivision against the 6 tests set out in Clause 18(1A) of the Subdivision Act 1988, seeking to demonstrate that the subdivision would not meet any of these tests and that no contribution was required.

15 Clause 52.01 states (my emphasis):

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.

16 Section 18 of the Subdivision Act 1988 provides as follows.

(1) If a requirement for public open space is not specified in the planning scheme, a Council, acting as a responsible 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)

...........; 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 .....

17 The schedule to this clause does not set out any requirement for a public open space requirement that is applicable to the subject site. Section 18 of the Subdivision Act 1988 is therefore applicable_._

18 Section 18(1A) of the Subdivision Act 1988 states (my emphasis):

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.

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.

26 On the basis of my reasoning set out above, I have concluded that I should direct that permit condition 3 be deleted.