Australia: How To Make A Public Open Space Requirement: A Timely Reminder

Last Updated: 26 November 2009
Article by John Rantino and Kate Morris

Some time ago in Hassta Holdings Pty Ltd v Maroondah CC [2007] 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 [2009] 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 planning permit.

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 permit.

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 Subdivision Act.

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 be paid.

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) is overturned.

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