On 23 October 2009, the Court of Appeal in Maroondah City
Council v Graham C Fletcher and Minister for Planning 
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
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
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
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,
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.
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
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
Though the other member of the Court (Redlich JA) disagreed with
that ruling, it is the majority ruling which presently
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
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.
Exceptional Service Award Winner | 2007 BRW-St George Client
Australasian Legal Business 2008 Fast 10 Law Firms
EOWA Employer of Choice for Women 2004 - 2008
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Council announced planning policies to encourage more inner suburban retirement village and aged care development.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).