On 23 October 2009, the Court of Appeal in Maroondah City Council v Graham C Fletcher and Minister for Planning [2009] VSCA 250 allowed Council's appeal and ordered that Fletcher's challenge to a POS requirement (imposed by permit condition) be remitted to VCAT for rehearing, in accordance with law.
The Appeal focused on whether Council was, in light of the particular subdivision or subdivisions, entitled to impose (by permit condition) a 5% POS requirement, where this had been specified in the schedule to cl. 52.01 of the Maroondah Planning Scheme.
VCAT (then constituted by President Morris) ruled that the subdivisions were not subdivisions to which cl. 52.01 of the Planning Scheme applied and ordered that the POS permit condition be removed.
Though it was clear enough that the proposal was one which effectively created a third lot from part of the backyard of each of two existing lots, there was some confusion or uncertainty (at least before the Court) on whether there was one subdivision or two, particularly given that (according to the Court) what was applied for was not the same as what was permitted by Council.
There were a number of important issues argued before the Court, including:
- Was it necessary to show that the plan of subdivision in question proposed to create an additional separately disposable parcel of land, as is required under s.18(1) of the Subdivision Act, in order to impose a POS requirement under cl. 52.01?
- Does s.18(1A) of the Subdivision Act apply to a POS requirement imposed under cl. 52.01? and
- Was cl. 52.01 invalid as being beyond power or as constituting a tax?
Warren CJ and Osborn AJA delivered a joint judgment in which they importantly ruled (contrary to the submissions of Council and the Minister) that s.18(1A) applied to a POS requirement imposed under cl. 52.01. This means that such a requirement may only be imposed where the Council concerned considers that, as a result of the proposed subdivision, there will be a need for more open space.
Though the other member of the Court (Redlich JA) disagreed with that ruling, it is the majority ruling which presently prevails.
It follows that any Council which wishes to impose a POS requirement under cl. 52.01 of its Planning Scheme may only do so if it considers that, as a result of the proposed subdivision, there will be a need for more open space, having regard to the matters set out in s.18(1A) of the Subdivision Act.
This is obviously a significant departure from what has, up until now, been understood and applied. Councils that have a cl. 52.01 must immediately review the manner in which the POS requirement is assessed and imposed although we have some difficulty in advising on precisely how to apply s.18(1A) until after the Tribunal considers that issue when the case is reheard.
All members of the Court answered no to the first issue set out above meaning that, contrary to the Tribunal's decision, it is not necessary to create a separately disposable parcel of land before a requirement under cl. 52.01 may be imposed.
The last mentioned issue was left undecided.
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