Crown Allotment 4, Parish of Nillumbik being the land in Certificate of Title Volume 8109 Folio 677.

This application for review is granted and I direct that condition 4 in Planning Permit 517/2000/14P issued by the Responsible Authority on the 18 June 2002 must contain condition 4 as it appears in that permit save that the expression "5%" is to be changed to read "2.5%".

Mr David De Giovanni, planner of the Shire of Nillumbik, appeared for the Responsible Authority. He presented written and oral submissions.

Mr Michael Loy, land surveyor of Lawlor and Loy Pty Ltd, appeared for the Applicants. He also presented written and oral submissions.

Various plans, photographs and other documents were tendered. The submissions and evidence in documentary form have been retained on the file of the Tribunal except for a bundle of photographs tendered by Mr Loy which were returned to him.

Application under s.80 of the Planning and Environment Act 1987 (PE Act) for review of condition on a permit.

Three lot rural subdivision and dwellings on Lots 2 and 3, there being an existing house on Lot 1.

Environmental Rural Zone 3 and Environmental Significance Overlay 1 under the Nillumbik Planning Scheme.

Condition 4 on Planning Permit 517/2000/14P which reads:-

"4. No less than 7 days prior to the issue of a statement of compliance, the owner of the land must pay to the Council an amount equal to 5% of the site value of all of the land being subdivided in accordance with Section 18 of the Subdivision Act.

1. The Permit condition is invalid as it does not satisfy the provisions of Section 18(1A) of the Subdivision Act 1988.

2. The condition is unreasonable and unwarranted as there is no increased need for Public Open Space generated by the subdivision and the size of the proposed allotments (all allotments are greater than 8ha) does not warrant the provision of a Public Open Space requirement.

3. The condition is inconsistent with previous Permits issued by Council for similar or like subdivisions.

1. This case involves the proposed subdivision of a rectangular area of land of 30.3 hectares into three allotments.

2. The land, as a whole, has been used for farming, and there is only the one house on it. Lot 1 is to accommodate the house. It is to have an area of 8 hectares. Lots 2 and 3 would have areas of 8.1 and 13.9 hectares respectively. This would leave a further 0.3 hectares as common property. The common property would give access to Lots 2 and 3, as Lot 1 occupies the full width of the road frontage. There are no houses on Lots 2 or 3, but the permit granted by the Responsible Authority provides for the specification of building envelopes for the houses contemplated on each of those lots.

3. The Responsible Authority has already made the decision to grant permission for this three-lot subdivision. That decision is not in issue before me. The only question I have to decide is the review of condition 4, set out above, which relates to the imposition by the Responsible Authority of a requirement for public open space.

4. Clause 52.01 of the planning scheme imposes no provisions in relation to public open space in respect of this planning scheme. The result of this is that s 18 of the Subdivision Act 1988 (SD Act) applies. That section enables the Responsible Authority to impose a requirement for 5% of the land or 5% of the site value of the land or a combination of land and cash to be provided for public open space purposes.

5. 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.

6. Section 18(1A) SD Act provides that the Responsible Authority 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 six stated considerations. The position taken by the applicants, as expressed in their grounds of review, is the permit condition is invalid on the basis that it does not satisfy the provisions of s 18(1A) SD Act. The Responsible Authority, on the other hand, maintains that it does consider that the subdivision occasions the needs for more public open space having regard to the various considerations. A fall back position of the applicants is that, even if I find that the Responsible Authority is justified in considering that there is a need for more public open space, nevertheless the maximum allowable contribution, namely 5% of the site value (seeing that cash rather than land is being sought in this instance) is excessive, and that a smaller percentage should be required. This fall back provision is without prejudice to their initial argument that there should be no requirement at all in the circumstances.

7. 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.

8. It is clear that the Responsible Authority, and on review the Tribunal, has a discretion as to whether there should be a requirement at all, and if so whether it should be in land or cash or a combination, and if in cash, whether it should be for the maximum allowable percentage, namely 5%, or for some lesser percentage.

9. The applicants' first ground is expressed in fairly absolute terms. It seems to say that all of the six considerations are totally relevant in the circumstances of the present case. Mr Loy ventures so far as to say that the condition is invalid, rather than merely inappropriate on the merits. Part of how this case was put is to suggest that, because opportunities for only two additional houses and households are created, the net affect, so far as increased need for public open space is concerned, will be imperceptible or insignificant.

10. Of course, the permit provides the opportunity for a 200% increase in the number of households on the land. Whilst two new households in an area, considered in isolation, might not make a perceptible difference to the need for and demands on public open space, it does not necessarily follow that such increase is insignificant. The reality is that changes that are relatively minor in themselves, may cumulatively be quite significant.

11. At 30 hectares, this present holding is the largest for some distance around. Many others range in size from 2 hectares to 9 hectares or thereabouts. This represents the effect of land being fragmented into smaller pieces over some time. If all the subdivisions were of the 3 or 4 lot scale, the ultimate result is the same as if the land had originally been all in one ownership and, in a single subdivision, it was cut up into many allotments ranging in size from 2 to 9 hectares. The result would be the same, and the increased demand on and need for public open space would be the same. If Mr Loy's argument were sound, no land or cash would be available to meet that need. They would defeat the purpose of the relevant provisions.

12. He pointed to the existence of s 18(8)(c). Section 18(8) exempts certain subdivisions from the need to make provision for public open space. Paragraph (c) exempts subdivisions into two lots if the Council considers it unlikely that each lot will be further subdivided. Of course this does not mean that all two-lot subdivisions are thus exempted. It does mean that some are exempt. Whether that exemption is right in principle or good policy, is not for me to say. The exemption is part of the law. It is also part of the law that three lot subdivisions are not so exempt. It obviously follows that this subdivision does not gain any benefit from sub-section (8)(c), so far as the terms of that paragraph go, and I cannot see that the principles involved assist the applicants either. The exemption for certain two-lot subdivision is a particular exception to the general rule, and, I think, to the applicable general principle.

13. I now consider the six matters listed (a) to (f) in s 18(1A).

14. The first is the existing and proposed use or development of the land. I think it is obvious that the proposed use and development of the land, compared to the existing, represents a 200% increase in households and makes a relevant increase to the need for open space.

15. The second consideration is the likelihood of existing public open space being more intensively used after than before the subdivision. Likewise, I think that it is obvious that this is likely. It does not mean there will be a huge or overwhelming change in the intensity of use, but that is not the test.

16. The third consideration is any existing or likely population density in the area of the subdivision and the effect of the subdivision on this. Once again, this subdivision makes it own modest contribution to the density of population.

17. The next consideration is whether there are existing places of public resort or recreation in the neighbourhood of the subdivision, and the adequacy of these.

18. As to this, attention was drawn to two existing places of resort or recreation namely the War Memorial Park and a reserve containing a playing field and some tennis courts. The evidence of the Responsible Authority is that these are existing and substantially developed areas of public resort and recreation that need maintenance, but only minor improvement. Improvement, as opposed to maintenance, is apparently limited to the need for some signs and the like.

19. I draw a distinction between routine maintenance, aimed at maintaining the land and its improvements in their original condition on the one hand, and improvements to the land for the purpose of public resort and recreation on the other. Installing park benches, a turf wicket, changing rooms and trees would be improvements while repainting the benches and changing rooms, rolling the turf wicket and pruning the trees on the other, would be maintenance. My understanding of it is that the requirement of land or cash for public open space under s 18 SD Act is to provide or acquire the land itself and to improve it, rather than to maintain it. Thus, for these two places of public resort and recreation, the land is already provided and the need for improvement is quite limited.

20. However, the Responsible Authority does not limit its case to those two areas. There is another area constituted by an old tip site. Apparently the land is available for public open space in the legal and ownership sense, but it is not available in practical terms, because it is still an old tip. It needs improvement and development to make it safe and suitable as a place of public resort and recreation. It is the intention of the Responsible Authority, in its capacity as the municipality, to improve this land and then make it available as a place of public resort and recreation, in due course. Like the other two areas discussed above, it is within 1 to 2 kilometres of the review site. It seems to me that this site is not adequate in its present form, indeed it is not even useable in its present form. The Responsible Authority has a good case for saying that there is a need, which need can be met by improving this area to make it suitable and available for use. It also sees a need for the provision of further open space in the form of linear equestrian and walking trails which again require improvement to make them suitable and available. One is proposed to follow the course of an existing aquaduct that passes near the land. Rural residential and hobby farm properties, such as those being created by this subdivision, together with many others in the locality, attract people with horses and a desire to ride horses. Although there is some opportunity for riding within many allotments on the 2 to 10 hectare scale, riders will frequently need or desire to have more scope than that, and these needs and desires can be well met by suitable bridle trails.

21. There are some areas of public resort and recreation within sufficient proximity of this land to be relevant considerations under s 18(1A)(d), but their adequacy varies at present from adequate to inadequate.

22. The fifth consideration is how much of the land in the subdivision is likely to be used for places of resort and recreation by the lot owners. This is an important consideration from the point of view of the case being advanced by the applicants. There is a wide variety of dwellings occupied by various households in Victoria. Some live in apartments without even balconies, some live in flats, or terrace houses, or in detached houses on the typical "quarter acre" suburban or urban allotments whilst others live on rural residential allotments, hobby farms of various types and scales of farm properties. People of various sorts, ages and stages have varying needs for open space for resort and recreation, though it is clear that the community as a whole certainly has such needs. Some of these residential properties make little or no provision, within their own compass, for the needs of occupants, whilst others provide private open space for occupants to varying degrees. Nevertheless, even large farming properties do not provide for all such needs. Private open space can be important, but it necessarily has its limitations, and the community needs public open space as well. Typical forms include parks, gardens, playing fields and other sporting facilities, playgrounds, walking trails, beach and foreshore reserves, river and watercourse reserves and so on. Generally speaking you can't play district cricket in a private backyard, or even paddock. "Head of the river" rowing races cannot generally be conducted on a farm dam, and so on.

23. I think that it is appropriate, where the allotment will be of 8 or more hectares, to take into account that the private open space available will meet a greater proportion of the open space needs of the occupants than is possible in a suburban detached house on a typical allotment, or in a third floor apartment. I think this does justify, generally speaking, a percentage of less than the maximum applicable. However, it does not justify ignoring the circumstance that some such increased need for open space will not and cannot be met by private open space and that some such increased need for public open space will be occasioned.

24. Mr Loy referred to a passage in an officer's report suggesting that 5% would generally be appropriate in relation to urban subdivisions and that 2% would be generally appropriate in relation to rural ones. There can be no rule as to these things, because they must be judged on the merits of the particular case. So far as this alleged statement of the planning officer is concerned, emphasis must be laid on the word "generally". There are numerous urban subdivisions where less than 5% has been required. I dare say there are rural ones where more than 2% have been required or would be justified.

25. There is a difficulty in relation to these cases, of assessing what percentage is appropriate. It is necessarily an inexact "science" in which there may be a number of considerations to be balanced and in relation to which no precise formula can be devised. It is a matter for informed judgement, rather than precise calculation. It is also a matter upon which honest and reasonable minds might come to varying conclusions.

26. The fact that there are difficulties, indeed that it is a difficult task, does not excuse the Responsible Authority in the first place, or the Tribunal on review, from undertaking its responsibility to make such judgements.

27. The last consideration under s 18(1A) is any policies of the Council concerning provision of places of public resort and recreation. Mr Loy referred to several cases in relation to this aspect, and seem to be suggesting that a Responsible Authority cannot successfully impose a requirement unless it has particular policies of this sort. I think this is putting the matter too high. Section 18(1A)(f) is not a mandatory requirement, but a matter for consideration. Its importance might vary from case to case. In relation to this matter Mr De Giovanni referred to various policies and objectives in the planning scheme of general and local application that recognise the importance to the community of the provision of public open space for resort and recreation. He also referred to a particular adopted plan in relation to the provision of equestrian trails.

28. I have taken all these various matters into consideration in relation to the present case. I am persuaded, as a result, that there will be a need for more public open space having regard to the various considerations. I am also persuaded that the amount, having regard to those considerations, and particularly that in s 18(1A)(e), should not be as much as 5%. Balancing these matters to the best of my ability, I have come to the conclusion that the appropriate percentage is 2.5%. I therefore propose to grant this application for review to the extent of changing the percentage in condition 4 to that figure.

29. I do not think I need deal with the second and third grounds of review separately, at any length. Effectively I have already dealt with the second ground. Notwithstanding the size of the proposed allotments, each being of 8 hectares or more, I do not agree that there will be no increased need for public open space and therefore I do not consider the condition to be wholly unreasonable and unwarranted on that basis.

30. The third ground is that the condition is inconsistent with previous permits issued by the Council for similar or like subdivisions. I do not think that this is really a relevant ground. This case has to be judged and assessed on its own merits. It is asserted that previous cases are similar, but that can only be ascertained, if at all, by a detailed consideration of each of them. In effect this would require a retrial of those cases. There are many aspects in relation to which there might be relevant variations. In any event, who is to say that any particular previous cases were necessarily correctly decided, or even what the basis for decision was. The Council, as Responsible Authority, was not required to give reasons for previous decisions. It is only if a matter comes to the Tribunal on review that reasons are given. The reasons that persuaded particular councillors might vary, and may never have received formal expression. Some may have participated in debate, and others may not, or there may have been no debate. Those who did participate in the debate may or may not have given all their reasons. Those who voted may or may not have been moved and persuaded by reasons given in debate. Furthermore, it does not follow that councillors have been persuaded by reasoning in an officer's report, even if the resolution was ultimately passed adopting a recommendation in such a report. Again councillors might have voted for other reasons. Really, it is only if the Council has expressed its reasons in a resolution, that there can be any confidence as to the reasons that led a Council to a particular decision in a particular case. A recital of reasons is unusual in a Council resolution. Those resolutions merely state the conclusion that was carried by the majority of councillors present and voting.

31. In the absence of reasons, and in the absence of being able to be confident that other cases were sufficiently similar in enough relevant circumstances, I cannot see what assistance is gained from them. One might look at them for what assistance they provide, but a decision has to be made on the merits of the particular case under consideration.

32. Even if an earlier decision is inconsistent, who is to say that it was correct? If it was not correct, why should it be followed now? An error should not be repeated. I have considered the matters quoted from the reasons in previous decisions where they came to the Tribunal or its predecessors, and where reasons were given; but the mere assertion that other cases are inconsistent, based solely on the result and decision and where no reasons were given, have not assisted me.

33. For these reasons I have decided that the application for review under s 80 should be granted to the extent of changing the expression "5%" in condition 4 to read "2.5%".