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Public Open Space Contributions - Fletcher v Maroondah City Council: E-Alert June 2010

• 11 June 2010 • 4 min read

On 20 May 2010 VCAT (constituted by Deputy President Gibson) in the above mentioned case brought a long saga to an end, by ruling that the applicant must pay to Council a public open space contribution of 5% of the site value – this being the fixed amount specified in the schedule to clause 52.01 of the Maroondah Planning Scheme.

The case had been remitted to VCAT following the successful appeal by Council to the Court of Appeal against an earlier decision of President Morris who had ruled that the open space contribution condition be deleted on the ground that the exemption in clause 52.01 applied.

The Court (in the majority judgment of Warren CJ and Osborn AJA) in effect directed VCAT, on the rehearing, to consider two issues; the application of section 18(1A) of the Subdivision Act to the subdivision in question being the more significant issue.

In addressing this issue the Tribunal considered there to be 2 aspects to resolve:

  • Whether, on the facts of the case, as a result of the subdivision there will be a need for more open space having regard to the factors set out in paragraphs (a) – (f) of section 18(1A); and
  • If there will be a need for more open space, whether the 5% public open space contribution specified in the schedule to clause 52.01 must be applied or whether there is discretion to reduce the amount.

The Tribunal had regard to each of the factors in paragraphs (a) to (f) of section 18(1A) and concluded that there will be a need for more open space as a result of what was characterised by the Tribunal as a three lot subdivision.

On the other aspect the Tribunal importantly ruled that, given the finding that there will be a need for more open space and hence section 18(1A) applies to allow an open space requirement to be made, there is no discretion to reduce the open space contribution fixed in the schedule at 5%.

This case plainly highlights the value to a Council of including a specified percentage in the schedule to clause 52.01 of its planning scheme.

However, Councils must also be conscious that, due to the ruling of the majority in the Court of Appeal, section 18(1A) applies to any subdivision to which a planning scheme applies (ie. where an open space contribution is specified in the schedule to clause 52.01). It will accordingly continue to be necessary for a Council to show, by reference to the factors in paragraphs (a) to (f) of section 18(1A) that, as a result of the subdivision, 'there will be a need for more open space'.

This necessarily means that, amongst other things, local planning policy on open space, any adopted open space strategy and steps taken to improve and enhance public open space will all be critical factors to raise in support of the imposition of any open space contribution from subdividers.

In our opinion, the reasoning of the majority of the Court is strained and ultimately lead to an erroneous ruling which ran counter to the commonly held view which had invariably been applied in the past. Conversely the minority judgment of Redlich JA is, in our view, well reasoned and his Honour's conclusion on the issue is to be preferred.

Unfortunately, as Deputy President Gibson pointed out in her reasons, the majority view must prevail and is binding on the Tribunal.

This will remain the position unless it is overturned on appeal to the Court of Appeal or is corrected by legislation.

The Deputy President adverted to this in paragraphs 7 to 11 of her reasons and, after referring to the difference of opinion expressed by the majority and the minority judgments (on the application of section 18(1A) to an open space contribution imposed under clause 52.01), invited the government to resolve, by legislation, 'issues of significance about the operation of the public open space provisions of planning schemes, the Planning and Environment Act 1987 and the Subdivision Act 1988.'

In our view this invitation ought be taken up by Councils to support a submission to the Minister for Planning that this issue be resolved by amending section 18(1A) to correct the position in line with the minority judgment of Redlich JA.

If you have any queries concerning the implications of the decision in Fletcher so far as open space contributions are concerned, please contact John Rantino on 03 9288 0694 or Ian Murray on 03 9288 0665.

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