The decision of the Minister for Planning (Minister) to issue two planning permits for the redevelopment of the former Xavier College Kostka Hall campus in South Road Brighton has attracted media attention as a result of the Minister's decision to intervene and call-in the applications from the Victorian Civil and Administrative Tribunal (VCAT).

Another aspect of the decision is relevant to anybody proposing to subdivide land in Victoria where a public open space contribution (POSC) is required to be made.

Background to the decision

Two planning permit applications were lodged. One to subdivide the land into 14 lots and another to construct 84 two storey townhouses on one of those lots.

Both applications were refused by Bayside City Council (Council) and reviews were sought by the Applicant at VCAT. The Minister then 'called-in' the applications and referred them to a Priority Projects Standing Advisory Committee (Committee) for advice.

It was agreed by Council and the Applicant that the subdivision triggered a requirement for a POSC which was fixed at 5% by the Bayside Planning Scheme. A dispute arose as to whether the Governor in Council (who would make any final decision to direct the issue of a permit) had the power to determine whether the form of the POSC was to be land or cash.

In this case, the Applicant wanted to provide cash and Council wanted to receive land.

Accordingly, the Committee was required to consider the following legal question:

In Permit Application No. 5/2023/425/1, does the Governor in Council have the power to determine:

• whether a public open space contribution is to be provided by land, cash or a combination of the two; and
• the location of the land, where it has determined that a public open space contribution in land is to be made;
• under clause 53.01 of the Bayside Planning Scheme in respect of the proposed subdivision of the land situated at 47 South Road, Brighton?

The issue turned on whether in imposing the requirement for a POSC Council was acting as a 'responsible authority' under the Planning and Environment Act 1987, in which case the decision was reviewable, or as a 'Council', in which case the decision was not reviewable.

Arguments submitted to VCAT

Council submitted:

• on the proper construction of clause 53.01, only Council can decide the manner in which the contribution can be made;
• this decision cannot be the subject of review by the Tribunal (or by the Governor in Council following a proceeding being called-in from the Tribunal); and
• if Council decides the contribution is to be made in the form of land, Council is also entitled to specify which land is to be the subject of the contribution, and that this further election cannot be the subject of review.

The Applicant submitted:

• the Governor in Council can decide the manner in which the POSC can be made
• the determination must be made in the context of the permit application pursuant to which the relevant subdivision is proposed; and
• if it is determined that the POSC should be made in the form of land, the location and configuration of that land as part of the broader subdivision is a matter to be determined in the context of the relevant permit application.

In support of its position the Applicant identified five key provisions of the planning scheme:

• clause 53.01 itself which establishes the requirement to make a contribution;
• clause 19.02-6L-02 (Public open space contributions) which is a local Bayside policy applying to permit applications for subdivision that provides guidance to decision makers concerning the circumstances in which a POSC should be made;
• clause 56 which indicates that the appropriate provision of public open space is a matter to be considered by a responsible authority when considering a permit application for subdivision;
• clause 59 (concerning VicSmart applications) which includes provisions that require a responsible authority to consider public open space requirements when deciding particular types of permit applications; and
• clause 65 which includes decision guidelines that a responsible authority must consider when deciding whether to grant a permit and requires the responsible authority to consider the planning scheme which includes clause 53.01.

Committee determination

The Committee determined that it preferred the arguments advanced by the Applicant, that it was open to the Governor in Council to decide the manner in which the open space contribution could be made, because it was a decision which was reviewable.

The Committee concluded that while the POSC must be given to the Council, it is imposed by the responsible authority. In reaching this conclusion, the Committee referenced various provisions in the planning scheme, including Clause 19.02-6L-02, Clause 56.05-02 and Clause 59, which require the responsible authority to consider public open space and the operation of Clause 53.01 in determining whether to grant a permit.

Clause 19.02-6L-02 applies to applications to subdivide land where a POSC is required in Bayside and has an objective to "identify when and where land contributions for public open space may be sought in preference to financial contributions or vice versa". In relation to this clause, the Committee posed the question:

Why would the Planning Scheme contain such a policy provision if not to guide the exercise of discretion by the responsible authority? If Council is correct, then this specific policy would have no purpose.

The Committee described the conclusion it reached as a practical one as it requires the decision under clause 53.01 to be made in accordance with the decision making framework of the Planning & Environment Act 1987 and not be made 'at large'. More specifically, it means that the decision to require a cash or land contribution must be made on its merits as part of an integrated and balanced planning assessment, guided by relevant statutory considerations and subject to review rights.

The Governor in Council agreed with the Committee's assessment and imposed a requirement for a cash, not land, contribution, as a condition of the planning permit.

Implications of the decision

While the decision of the Committee (and then the Governor in Council in issuing the permit) will not be binding on a future Tribunal, it is likely to be persuasive, particularly given the detailed analysis undertaken by the Committee.

If you have any questions regarding the decision and how it may assist the circumstances of your subdivision, please contact MinterEllison's Melbourne Environment and Planning Team.