Victorian Consolidated Legislation

Subdivision Act 1988 - SECT 18

Council may require public open space8, 9

18. Council may require public open space8, 9



(1) If a requirement for public open space is not specified in the planning
scheme, a Council, acting as a responsible authority or a referral authority
under the Planning and Environment Act 1987 may require the applicant who
proposes to create any additional separately disposable parcel of land by a
plan of subdivision to-

   (a)  set aside on the plan, for public open space, in a location
        satisfactory to the Council, a percentage of all of the land in the
        subdivision intended to be used for residential, industrial or
        commercial purposes, being a percentage set by the Council not
        exceeding 5 per cent; or

   (b)  pay or agree to pay to the Council a percentage of the site value of
        all of the land in the subdivision intended to be used for
        residential, industrial or commercial purposes, being a percentage set
        by the Council not exceeding 5 per cent; or

   (c)  do a combination of (a) and (b) so that the total of the percentages
        required under (a) and (b) does not exceed 5 per cent of the site
        value of all the land in the subdivision.



(1A) The Council may only make a public open space requirement if it considers
that, as a result of the subdivision, there will be a need for more open
space, having regard to-

   (a)  the existing and proposed use or development of the land;

   (b)  any likelihood that existing open space will be more intensively used
        after than before the subdivision;

   (c)  any existing or likely population density in the area of the
        subdivision and the effect of the subdivision on this;

   (d)  whether there are existing places of public resort or recreation in
        the neighbourhood of the subdivision, and the adequacy of these;

   (e)  how much of the land in the subdivision is likely to be used for
        places of resort and recreation for lot owners;

   (f)  any policies of the Council concerning the provision of places of
        public resort and recreation.

(1B) If a Council requires an applicant to pay or agree to pay an amount under
subsection (1)-

   (a)  the amount must be paid before the Council issues its statement of
        compliance; and

   (b)  subject to paragraph (a), the time for payment of the amount is at the
        applicant's discretion; and

   (c)  despite paragraph (a), the whole or any part of the amount may be paid
        after the Council issues its statement of compliance if the applicant
        and the Council so agree under section 21(1)(b)(ii).

(2) In the case of a staged subdivision using the procedure under section 37-





   (a)  if an open space requirement is to be made, it must be made for the
        master plan, but may be expressed to apply to any particular stage or
        stages; and



   (b)  if the requirement applies to the second or a subsequent stage, the
        location of the open space need not be defined except on the plan for
        that stage; and

   (c)  if the requirement applies to the second or a subsequent stage and is
        a requirement to pay money, the total amount to be paid may be
        apportioned between particular stages, and the proportion need not be
        specified except for the plans of the appropriate stages.

(3) Land intended to be used for residential, industrial or commercial
purposes includes land set aside on the plan of subdivision for roads or other
reserves incidental or ancillary to the use of the land for residential,
industrial or commercial purposes.

(4) The applicant may agree with the Council to set aside or pay a percentage
other than the set percentage.

(5) A public open space requirement may be made only once in respect of any of
the land to be subdivided whether the requirement was made before or after the
commencement of this section, unless subsection (6) applies.

(6) A further open space requirement may only be made when a building is
subdivided and a public open space requirement was not made under section 569H
of the Local Government Act 1958 or section 21A of the Building Control Act
1981 when the building was constructed.

(7) If any amount is paid to the Council under this section and the Council is
satisfied that it is no longer intended to subdivide the land to create any
additional lot, the Council may refund the amount paid to it.



(8) A public open space requirement is not required if-

   (a)  the subdivision is of a class of subdivision that is exempted from the
        public open space requirement by the planning scheme; or

   (b)  the subdivision is for the purpose of excising land to be transferred
        to a public authority, Council or a Minister for a utility
        installation; or

   (c)  the subdivision subdivides land into two lots and the Council
        considers it unlikely that each lot will be further subdivided.