Some time ago in Hassta Holdings Pty Ltd v Maroondah CC
 VCAT 2455 (Hassta), the Tribunal held that
the practice of making a public open space requirement under
section 18 of the Subdivision Act 1988 by way of a note on
a planning permit is not a valid means of making such a
requirement. The Hassta decision was subsequently appealed to the
Supreme Court. Given the matter is yet to be heard, it is unlikely
that the Supreme Court will issue a decision on the Hassta appeal
until well into the new year.
In the meantime, the recent case of Todd Property Pty Ltd v
Banyule CC  VCAT 2005 (Todd) serves as
a salient reminder that, currently, the Tribunal's decision in
Hassta stands as the most authoritative statement on the practice
of making a public open space requirement by means of a note on a
The Todd case was a conditions appeal. As it turned out, it was
not a permit condition which was in contest but a note at the foot
of the permit. The note purported to require payment of a public
open space contribution for the four lot subdivision allowed by the
The issue in dispute between the parties was not whether the
note was a valid means of requiring the public open space
contribution but whether the quantum required was appropriate.
The matter came before Deputy President Gibson at a practice day
hearing to consider a request by Council that the matter be struck
out as misconceived. Council submitted that the application for
review was invalid and should not be allowed to proceed because the
public open space requirement being challenged was made under
section 18(1) of the Subdivision Act 1988
(Subdivision Act) and, being a permit note rather
than a permit condition, it was unable to be challenged under the
Planning and Environment Act 1987. Council submitted that
any appeal would have to be lodged under section 39(1) of the
Putting aside Council's strike-out application and the
issues actually in dispute between the parties, the Deputy
President had this to say about the method used by Council to
require the public open space contribution:
7 My conclusion in Hassta was that when a council
acting as a responsible authority decides to grant a permit for
subdivision and decides to require payment of a contribution for
public open space either under section 18(1) of the Subdivision
Act 1988 or clause 52.01 of the planning scheme (as distinct
from deciding that land should be set aside on the plan of
subdivision), a condition must be included in the planning permit
to this effect and setting out the percentage of the site value to
9 In light of the careful consideration I gave to these issues
in Hassta, I consider that until they may be set aside by
the Supreme Court, I am entitled to maintain adherence to my
conclusions for the reasons set out in that decision. I therefore
reject the council's submission that I should not rely upon
Hassta simply because it goes against the 'grain'
of other decisions. In my view, the council's practice of
requiring a public open space requirement by means of a note in the
planning permit, rather than by way of a condition, is not
acceptable and imposes no obligation on the permit holder. I do not
consider it is open to the council to make a requirement in some
other way and to resolve any dispute under the Subdivision
Act 1988 rather than the Planning and Environment Act
1987 because in such circumstance the council would not be acting
as a responsible authority as required by the words of section
18(1) of the Subdivision Act 1988.
12 I therefore find that the council's practice of making
the public open space requirement by way of a note in a planning
permit is not a valid means of making such a requirement.
When making a public open space requirement for a cash payment
(as distinct from requiring land to be set aside on a plan of
subdivision) under section 18(1) of the Subdivision Act or clause
52.01 in the Planning Scheme, the requirement must be expressed in
a condition on a planning permit. If a council purports to make a
requirement in any other way, it would not be acting as a
responsible authority or referral authority as required by the
words of section 18(1) of the Subdivision Act. As such, it
would be invalid and unenforceable.
That is, at least, until the decision in Hassta (and now Todd)
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