Mr S Coleiro, Gattini and Partners, with Ms P Yann.

Mr J Hastings, statutory planner, with Mr I Stewart, General Manager Infrastructure Services, and Mr N Manning, Manager Planning.

Application under Section 80 of the Planning and Environment Act 1987 [PEAct].

The lot sizes are 424, 425 (x 2 lots) and 551 square metres.

Clauses 10, 11, 15, 16, 21, 52.01, 56, 65.01 and 65.02.

The review site is located on south-west corner of Dean and McNeill[2] Streets. The land is 1,825 square metres and is vacant. There are a number of dwellings and vacant lots in the area. Both Dean and McNeill Streets have a gravel surface.

Prior to the hearing as parties were advised at the hearing.

Stupak v Hobsons Bay CC [2011] VCAT 618.

P M Kennedy Land Surveyor v Hobsons Bay CC [2009] VCAT 48.

1. In December 2010, the Ararat Rural City Council granted Permit 02102 for the subdivision of the review site into four lots. The Permit included five conditions that are opposed by the permit holder. Ms Yann has sought review of Conditions 3(a), (b) and (c), 6, 8 and 9. The conditions require:
   • Dean and McNeill Streets to be sealed with kerb and channel along the site's frontages and beyond to Queen Street.
   • A footpath constructed along the site's two street frontages.
   • Street lighting, comprising a light on each of two existing light poles.
   • A 5% public open space contribution.
2. Mr Hastings explained the reason for the conditions in his submission.
3. Mr Collins indicated that he did not favour the subdivision for various reasons but he accepted the Council's position and any conditions should be complied with to, inter alia, limit costs on other ratepayers.
4. Mr Coleiro submitted the proposed conditions are inequitable, unreasonable and, with respect to a public open space contribution, not supported in the Council's assessment of the proposed subdivision.

1. Mr Coleiro submitted there should be no requirement for road and footpath construction as part of the subdivision approval. He submitted such works should be funded through other means such as a special rate as the works will benefit other property owners and the likely traffic generated by the proposed subdivision does not warrant the works sought by the conditions.
2. I do not agree. In urban areas where roads are unmade subdivision permits routinely require road and footpath construction along the site's boundaries and the creation of crossovers[4]. It is true that other land owners and members of the community benefit however the obligation is reasonable and consistent with the approach adopted in Ararat for urban small-scale infill subdivisions as Mr Hastings explained.
3. It is true that the road network will develop in an ad hoc manner as Mr Coleiro noted. That is not unusual for subdivisions in townships such as this and, in time, with other development, more of the road network will be completed. I was advised that the land opposite the review site has been approved for subdivision and will be required to complete the balance of this section of McNeill Street and to construct its other frontages.
4. I am satisfied that the works required along the site's boundaries are directly related to the approved subdivision and are acceptable having regard to the requirements of Section 62(5) of the PEAct.
5. I am not, however, persuaded to require the Applicant to construct Dean Street beyond the site's boundaries from Coral Street to Queen Street. The reason for this extension was given as seeking to encourage vehicles to use this part of the road network rather than other local streets in response to an objection received by the Council in the application process. While that encouragement is understood, I am not persuaded that the condition is reasonable and fair. It appears that it is not typical of the works required by the Council in subdivision permits and I see no special case here for these additional works adjacent to two other properties to be undertaken by the Applicant as a consequence of the approved subdivision.
6. I will therefore retain parts (a), (b) and (c) in Condition 3 but delete reference in part (a) to the connection to Queen Street.

1. There is an existing street light opposite the site. Mr Hastings said there are two other light poles to which lights could be attached to, noting the dark night-time conditions that Mr Collins also described.
2. Mr Colerio opposed the condition on the basis that replacement of lighting is unreasonable and even two new lanterns should be part of a co-ordinated special rate scheme associated with road construction.
3. The condition does not require new or relocated light poles rather the addition of several lanterns to existing poles. This will enhance safety at the intersection where the lots are located. It will benefit the lots created. Condition 8 is acceptable and will be retained on the Permit.

1. Condition 9 requires a 5% public open space contribution.
2. Mr Coleiro criticised the failure of the officer's assessment to address Section 18 of the Subdivision Act 1988 to provide a basis for the 5% contribution sought by the Council. He submitted the Council has a 2003 Recreation and Open Space Strategy that has not been pursued to a schedule to Clause 52.01; the Council is applying 5% routinely and without proper assessment. Mr Coleiro submitted the proposed lots have sufficient area each to include a rear yard and, while it is reasonable to expect some public space may be used more often (albeit marginally), there is good open space near to the review site and there is no indication that these resources are inadequate. He submitted the four lot subdivision would only marginally increase the population over a period of several years and therefore would have a minimal effect on public open space demand.
3. Mr Hastings submitted that a 5% contribution is appropriate because three extra lots will be created increasing the need for and intensity of use of public open space including that near to the review site. He referred to works undertaken and proposed by the Council to Alexandra Park and to create a network/trail around Ararat. He noted that 5% is consistently applied to the small lot subdivisions that are the predominant approvals in Ararat and that the contribution for the review site, like others, will be put toward improvements in the open space network around Ararat.
4. Both parties relied on the Tribunal's findings in Stupak.[5] Mr Coleiro also relied on the findings in P M Kennedy[6], a decision that is referred to in Stupak.
5. There is no schedule and no specific reference in local policy within the Scheme that I could locate. However, I am persuaded that a public open space contribution is appropriate for the four lots created by the approved subdivision. In forming that view, I have considered the requirements of Section 18(1A) of the Subdivision Act 1988 and the submissions presented by the parties with respect to the matters set out in that Section. I find as follows:
   • The approved subdivision will create three additional lots and the approved lots can be expected to each contain a detached dwelling that can be erected without further planning permission.
   • There will be an increase in population as a consequence of dwelling development and that will create a higher demand for public open space than is currently the case.
   • The lots will allow each dwelling to have private open space but the areas will not be large and will not negate increased demands on, and use of, public open space in Ararat.
   • The increase in population associated with the subdivision will be small but is part of a process of infill development that cumulatively can be expected to have an impact on the overall population.
   • There are public open spaces in the area which are being improved by the Council with a wider pedestrian and cycling network in development.
   • There are no areas of communal open space proposed within the subdivision.
   • The 2003 strategy to which I was referred is not part of the Scheme but I accept that the Council is improving public open space facilities and the local network based on the submissions presented.
6. The above combination of findings justifies a 5% contribution in my view.
7. In reaching that conclusion, I also do not accept Mr Coleiro's submissions that a four lot subdivision should not derive a 5% contribution because it is not much larger than a two lot subdivision for which no contribution is payable. Deputy President Gibson referred to, and did not accept, a similar argument in Stupak[7] noting that the financial contribution is proportional and noting some of the principles underlying the requirement for a contribution.[8]
8. I understand that the Council routinely applies 5% given the general need to improve public open space for the Ararat community. While there may be sound reason to do so in the circumstances of each subdivision application, and the condition has generally not been contested[9], I suggest it would be helpful for the Council to consider a Scheme amendment to provide for a required public open space contribution if it can strategically support that through such a process. As noted in both Stupak[10] and P M Kennedy[11], the use of the Schedule to Clause 52.01 would give certainty to applicants and the Council without the subjective debates that are often associated with disputes about public open space contributions included on subdivision permits.

1. For the above reasons, I will allow part of the Application. I will delete the requirement for McNeill Street to be sealed and provided with kerb and channel beyond the site boundaries. All of the other contested conditions are to be retained on the Permit.

[1] The permit application and Permit refer to No. 9 Dean Street although the application for review refers to Nos. 11 -13 Dean Street. I have relied on the permit application and Permit for the correct address.

[2] I have relied on the spelling of McNeill Street as referred to on cadastral and other plans although I note the Notice of Decision refers to "McNeil" Street.

[3] I have considered all grounds and submissions presented by the parties although I do not recite all of the contents in these reasons.

[4] The Applicant has not opposed Condition 3(f) that requires crossovers to the lots.

[5] Stupak v Hobsons Bay CC [2011] VCAT 618.

[6] P M Kennedy Land Surveyor v Hobsons Bay CC [2009] VCAT 48.

[9] I was advised of this by the Council. I am not aware of any other applications seeking review of this condition in Ararat and was not referred to any by the parties.