Stupak v Hobsons Bay CC. Country/Territory Australia Type of court National - lower court Date Apr 11, 2011 Source UNEP, InforMEA Court name Victorian Civil and Administrative Tribunal Seat of court Melbourne Judge Gibson. Reference number [2011] VCAT 618 Language English Subject Land & soil, Legal questions Keyword Land-use planning Abstract This case concerned a permit for a three-lot subdivision and the construction of three dwellings. The permit holder applied to VCAT for review of a condition in the planning permit which required a public open space contribution of 5%, which Council had determined under section 18 of the Subdivision Act 1988. The applicant argued that the 5% open space contribution was too high. The Tribunal affirmed the original planning permit decision, finding no reason to reduce the public open space contribution from 5% down to 2%. The amount of public open contribution that is required in the case of a particular subdivision is often specified in the applicable Planning Scheme, at the schedule to clause 52.01. However, where the Planning Scheme does not specify an amount, a public open contribution may still be required under section 18 of the Subdivision Act. There are two separate questions to be addressed when assessing a public open space contribution under section 18 of the Subdivision Act 1988: Whether, on the facts of the case, there will be a need for more open space having regard to the factors set out in section 18(1A); If there will be a need for more open space, what percentage is appropriate under section 18(1). The difficulty associated with considering the criteria in section 18(1A) is that whilst they may lead to a conclusion there is need for more open space, no assistance is provided about quantifying the percentage of the open space contribution that should be required under section 18(1). The lack of guidance in section 18(1) about what percentage of public open space may be required means that a discretion must be exercised in each case. This decision considers what factors may be relevant in deciding what percentage of public open space should be required under section 18(1). The Tribunal therefore held that there was no reason to reduce the public open space contribution from 5% to 2%, and noted that in recent years nine subdivisions in proximity to the subject land had all had a public open space contribution of 5%. Full text COU-156672.pdf