Contesting council decision

Hi -

Ours is a corner block of land that we decided to subdivide for a new build while keeping the existing house. The original block size is 870sqm to be split into 2 lots - lot1 existing house of 600 sqm and lot2 new build of 270sqm(both houses will be facing the street as wide frontage).. We used a Town Planner and a Planning Permit application was submitted to the council.

The Council has indicated their approval of the application however have included condition that a payment equivalent to 5% of land should be made to council as contribution for public open space. This has come as a shock as when we initially started talks with the Town Planner to consider availalable options he was clear that the block can only subdivided into maximum 2 blocks due to street setback restrictions applicable and also keeping in line with other houses on the street. All we wanted to do is a simple subdivision to construct a new house while retaining the existing home.

Its absurd that the council considers that the block has potential to be split into 3 lots (even for the lot2 planning application we had to change the design a few times to increase street and boundary setback and therefore reducing size of built up area of new build from original design). The town planner is equally flabbergasted as they still think 3 reasonable builds cannot be constructed in our block 870 sqm. Infact they mentioned that another application that has bigger land area than us and for 3 town houses had been knocked back by council. (I know there are some councils of high density areas that can do 3 or 4 builds in that area but not ours).

Can anyone suggest what our course of action could be? The townplanner said he will try to mock up designs for 3 builds to go back to the council to demonstrate impracticability. If this does not work, what are other options.. Success rates of VCAT appeals against council I am made aware are not encouraging. The 5% contribution that is being asked is a huge amount for us (approx 40K) and with no gurantee of a reasonable outcome for us.

Hope someone can share any ideas / experiences...

Bumping this thread for attention.

Thankyou!

You already know what your options are and your probability of success
Don't forget that the cost of VCAT appeal could be substantial.
The best thing you can do is re-evaluate your project feasibility and see if you can absorb the cost and pass it on

Thankyou for your advice, I get what you are saying...

I have probably missed something here but I’m not sure how a request for payment that represents the equivalent of 5% of land relates to whether the block is divided into 2 or 3.

I mean, I suppose an ability to divide it in to 3 would mean the land might be more expensive thus 5% might be a higher cost in that scenario, but isnt the number of blocks you can divide land into just a factor of the R-coding of the land?

From what I have read - the open space levy does not apply to a typical dual occupancy development where only one additional lot is created. However, if the land could potentially be further subdivided, the open space levy will apply.
A public open space requirement may be made only once. Subdivisions are exempt from a contribution if the subdivision subdivides land into two lots and the Council considers it unlikely that each lot will be further subdivided.

Wow. That’s interesting. My council must be different as I didn’t have to pay the fee… glad to hear that for once my council didn’t gouge me!

Posting an update in case it may benefit others in a similar situation - Council has agreed to waive the Public Open space levy if we were to build a new house where existing house is on lot 1.

That is if the proposal presented to Council is for 2 brand new dwellings, whereby it is not possible for either of the lots to be further subdivided if those two new dwellings are constructed, then a POS contribution condition could be deferred via Section 173 agreement (for when, or if it is subdivided in the future).

so you'll have to build 2 new houses now? weren't you going to keep the old house?

That's right, originally our plan was to retain existing house (to rent it out) and build a house in the backyard for investment purpose. The existing house is 60-70 years old.
This was because we were looking to buy a larger house for our family.

However given the circumstances, rising property prices and evaluating our options, we decided that a KDRB is the better way forward for us as we like the suburb and street and also as we had no intention of building 3 townhouses.

whats the legislation for the POS, section 173 agreement etc