Public Open Space: (on a Sealed Plan) means land set aside, usually as part of a planning permit, for public recreation or public gardens or for similar purposes of public pursuit.
It is unfortunate that there are two meanings to the term Public Open Space. The term on the one hand relates to Land dedicated for the Public Use on a Sealed Plan. On the other hand it describes a land use (how the land is to be used) within a Planning Scheme. So, land shown as Public Open Space on a Planning Scheme does not mean that the public has rights of use over that land; it means that the registered owner must only use that land in accordance with the permitted uses defined within the Planning Scheme.
With reference to the plan to the right Lot 9 has been Set Aside for Public Open Space. Note if these words are on a Title Plan then the land is set aside for Public use, even if the title to such land is still in the subdividors name.
Further, unfortunatley some old Planning Schemes use the term 'Public Open Space' as a Zone description; when used in this context the words refer to the Land Use that applies to the land (ie. how the owner is allowed to use the land and for what purpose); it DOES NOT signify that the Public have a right to use the land.
Subject to the comments below, when large scale developments are undertaken Council's have certain rights in relation to 5% of the land being set aside for Public Open Space purposes. They also have the right to request that instead of land being given 5% of the value of the land is to be paid to Council. This is often the case with small subdivisions where 5% of a small lot is of little use to Council.This usually forms part of the Permit. It is State Government Legislation and not as commonly thought a Council whim. Council's do have the discretion to apply it or not; most do. On small developments it can be one of the bigger costs.
The following rules apply when making a Subdivsion Submission to Council:
NO OPEN SPACE SHOWN ON PROPOSAL CASH IN LIEU WANTED:
Where no open space is shown on a proposal, council as a condition, can require cash in lieu if it is of the view that the subdivision gives rise to the need for the provision of open space
NO OPEN SPACE SHOWN ON PROPOSAL LAND WANTED:
Where council have formed the view that the proposal will give rise to the need for public open space that is not provided in the proposed subdivision and they are of the opinion that LAND should be provided, their only option is to REFUSE the subdivision on the grounds that the proposal should be altered to include public open space
OPEN SPACE SHOWN ON PROPOSAL CASH IN LIEU WANTED:
Where council have formed the view that the public open space provided in the proposed subdivision does not suit the public convenience or there is no other means of providing public open space which would be of public benefit, their only option is to REFUSE the subdivision on the grounds that the proposal should be altered to omit public open space
OPEN SPACE SHOWN DIFFERENT LOCATION WANTED:
Council may, in lieu of the public open space set out on the proposal plan, ask that the final plan contain 'the area set out in the plan annexed' as public open space and further advise that the subdivider is to sell that area to the Council for the sum of $1.00 and further the subdivider is to execute a transfer of the land in favour of the Council immediately upon the issue of titles
OPEN SPACE SHOWN ON PROPOSAL EXTRA LAND WANTED:
Council have the power to ask for extra public open space but must pay for that in excess of 5%
OPEN SPACE LESS THAN 5% SHOWN ON PROPOSAL
Council have the power to ask for the difference between the area shown on the plan as public open space (if it is less than 5%) and 5%, to be paid as cash in lieu
COUNCIL CAN'T DELETE POS AND ASK FOR CASH IN LIEU
It is not possible for a council to impose a condition on a permit approving a plan of subdivision which deletes public open space provided in the plan and then to require a contribution of cash in lieu of public open space by a further condition
COUNCIL TO ESTABLISH A NEED
It is not enough that council has a policy requiring contribution, it must make an individual assessment of each subdivision, it must form the view that the subdivision will give rise to a need
ADHESIONS PUBLIC OPEN SPACE SHOULD NOT BE ASKED FOR: In general terms, unless a new lot is being created, it is hard to see how a Council could bona fide come to the conclusion that the plan of subdivision created an additional need for public recreation space such that such space should be included(or cash in lieu).
POS: HOW VALUED: VALUE IS BASED ON THE VALUE OF THE NEW LOTS CREATED LESS DEVELOPMENT COSTS
eg. If 6 lots are created out of 1, councils usually seek funds for 5 new lots
STANDARD POS CLAUSES USED BY COUNCILS.
1. The land shown on the proposal plan as “public open space” is to be sold to the Council by the subdivider for the sum of $1.00 and the subdivider will execute a transfer of that land in favour of the Council immediately upon the issue of titles.
2. That in lieu of the public open space set out on the proposal plan the final plan is to contain the area set out in the plan annexed as public open space and is to sell that area to the Council for the sum of $1.00 and further the subdivider is to execute a transfer of the land in favour of the Council immediately upon the issue of titles.
3. The subdivider shall sell to the Council the land shown on the plan as public open space for the sum of $1.00 and the subdivider shall execute a transfer of the land in favour of the Council immediately upon the issue of titles.
4. The subdivider shall also pay to Council within 90 days of demand an amount of money which bears the same ratio to the value of the whole area comprised in the plan as one twentieth of that area less the area already provided for public open space in the proposal plan and any area created by the final plan of the littoral or riparian reserve bears to the whole area.
5. The subdivider prior to the lodgement of the final plan is to provide security for the above payment by a bond and bank guarantee as set out in Section 117(4) of the Local Government (Building and Miscellaneous Provisions) Act 1993.
6. The subdivider is to pay to the Council an amount which bears the same ratio to the value of the whole of the area comprised in the plan as one twentieth of that area less the area provided for public open space in the proposal plan and any area created by the final plan of the littoral or riparian reserve bears to that whole area.
7. Prior to the lodgement of a final plan the subdivider is to provide security for the payment referred to above by bond and guarantee as set out in Section 117(4) of the Local Government (Building and Miscellaneous Provisions) Act 1993
If Public Open Space already taken with a previous subdivision, it should not be taken again.