1. The application is struck out pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 as misconceived.

2. The hearing dates for the mediation of 27 October 2003 and the Tribunal hearing of 3 December 2003 are vacated.

1. This application is by Mr and Mrs H & E Addie, as objectors, under Section 82(1) of the Planning and Environment Act 1987 ("PE Act") against a decision of the City of Greater Geelong ("Council") to issue a Notice of Decision to Grant a Permit for the construction of a four storey building containing 26 serviced apartments and managers residence on the subject land at 16 The Esplanade South, Geelong.

2. The application has been listed for mediation on 27 October 2003 and with a reserved date for a Tribunal hearing on 3 December 2003.

3. By fax dated 25 September 2003 Minter Ellison, Lawyers, on behalf of the Respondent/Permit Applicant requested the matter be listed for a Directions Hearing and foreshadowed that their client sought an order pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 summarily dismissing or striking out the application on the basis that it is misconceived and lacking in substance, or alternatively, on the basis it is otherwise an abuse of process, on the grounds that the Applicants' stated grounds are not planning issues that require hearing, but rathe relate to alleged proprietary rights which should be determined or enforced in another forum.

4. By a letter of the same date Minter Ellison provided additional grounds of review to the same effect.

5. Following that request, the matter was listed for a Practice Day Hearing at 10.00am on 10 October 2003.

6. Whilst the Applicants had indicated by correspondence they were not able or willing to attend the hearing and did not understand the urgency of the matter, Ms Leshinsky of Counsel represented them at the hearing.

7. At the Practice Day Hearing all parties indicated they were ready to proceed with the application under Section 75 and did not seek an adjournment.

8. After hearing argument, my decision was that the application for review should be struck out pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 as misconceived by virtue of the Planning and Environment List of the Tribunal not having jurisdiction in the matter and made orders to that effect and that the hearing dates for the mediation and the hearing be cancelled.

9. Oral reasons were given at the hearing and these reasons are intended to reflect those.

10. The grounds stated in the application for review are as follows:

"The failure of the Council to address Sections 62(2)(l) and 173 of the Planning and Environment Act and Section 42(2) of the Transfer of Land Act."

11. At the hearing Ms Leshinsky did not pursue any matter under Section 42 of the Transfer of Land Act.

12. The proposal is for a four-storey building with car park at ground level containing 26 service apartments on the subject land at 16 The Esplanade South, Geelong. On both sides at ground floor level the building will be built to the boundary. Ms Leshinsky's clients own 18 the Esplanade South, Geelong next door. On her clients' property along the boundary is a 200mm strip containing pipes and other services, some of which may be on the subject land on the Respondent's side.

13. The Applicants claim an implied easement or right of way over the subject land for the provision of these services and for access to these services. Ms Leshinsky said this implied easement had been enjoyed for over 20 years and that the Applicants will lose its benefit when the proposal is built. They have requested a set back to allow access.

14. Section 26(2)(l) PE Act authorises a Responsible Authority to include in a permit a condition as follows:

"(1) a condition stating that it considers that the economical and efficient subdivision, consolidation or servicing of, or access to, land requires the holder of the permit to acquire or remove -

(i) a right of way over the land covered by the permit; or

(ii) an easement over land not covered by the permit but in the vicinity of that land -

using the procedure in section 36 of the Subdivision Act 1988 and that the acquisition or removal will not result in an unreasonable loss of amenity in the area affected by the acquisition or removal;"

15. Ms Leshinsky acknowledged that an application in the Planning and Environment List of the Tribunal may not be the appropriate application for her client but that her client may need to make an application under Section 36 of the Subdivision Act 1988 to be dealt with by the Property Law List of the Tribunal. However I do not consider there is any means by which this application can be amended to be an application in the Property Law List under Section 36 of the Subdivision Act nor can the matter be transferred to that List. If the Applicant wishes to commence an application under Section 36 of the Subdivision Act to acquire an easement over land, a new application should be lodged.

16. I accept the reference to Section 173 PE Act in the application appeared founded on the basis that the Applicant sought that Council to impose a Section 173 agreement requirement as a condition on the permit to require the permit applicant to grant an easement reflecting the implied rights claimed.

17. In this case the sole basis claimed for jurisdiction lies under Section 62(2)(l) PE Act. I agree with Mr Naughton's submission that this provision is not wide enough to give the Tribunal jurisdiction to deal with the Applicants' claim. It indicates that the person seeking the acquisition or removal of a right of way or easement should be the prospective holder of the permit, (in this case the Respondent). It does not contemplate that the person seeking the easement or right of way should be the owner of another property not subject to the permit application and who is not the permit holder.

18. Without jurisdiction the Tribunal in this List cannot consider the application. The Tribunal is bound by the enabling enactments giving it jurisdiction which must be strictly complied with and it can only exercise jurisdiction within the boundaries of the enabling enactments. No other provision of the PE Act, the Subdivision Act, the planning scheme or any other legislation has been referred to as a basis for jurisdiction for the Planning and Environment List to entertain this application for review.

19. I have considered the comments of Senior Member Byard as to the extent of jurisdiction under Section 62(2)(l) PE Act in Clarcor Pty Ltd v Maroondah City Council [2003] VCAT 435 (dated 22 April 2003) at paragraphs 15 and 16] and I consider that nothing is said there which gives any aid to the Applicants.

20. My conclusion is that Section 62(2)(l) PE Act does not give the Applicants jurisdiction to bring the application for review, it is misconceived and should be dismissed.

21. Section 36 of the Subdivision Act 1988 has some differences from paragraph (l) of Section 26(2) PE Act. Section 36 reads as follows:

"36(1) substituted by No 48/1991 s.32(1), amended by Nos 34/1994 s.691), 52/1998 s.311 (Sch. 1 item 86.2(a)).

(a) when considering a proposed amendment to a planning scheme or an application for a permit or to amend a permit; or

(b) in implementing an amendment to a planning scheme; or

the Council or a referral authority states in writing that it considers that the economical and efficient subdivision or consolidation (whether existing or proposed) or servicing of, or access to, land covered by the amendment, proposed amendment, application or permit requires the owner of land to--

(d) remove a right of way over the owner's land; or

(i) other land in the subdivision or consolidation; or

and that the removal or acquisition will not result in an unreasonable loss of amenity in the area affected by the removal of acquisition, the owner may apply to the Victorian Civil and Administrative Tribunal for leave to remove the right of way or acquire or remove the easement compulsorily."

22. This provision may possibly be wider in operation than Section 62(2)(l) of the PE Act but I make no comment on whether or not the Applicants could successfully bring a proceeding in the Property Law List of the Tribunal to obtain or affirm the easement or rights they claim, or whether their claim could more appropriately be dealt with in the Courts. The Applicants must consider their own position in the light of their legal advice.