Real Property List - application to acquire easement over public reserve - whether "required" for the "economic and efficient" access of subject site - must prove requirement for both economic and efficient access - whether proposed easement would cause unreasonable loss of amenity - whether permissible to look at proposed plans for use of land by landowner - Subdivision Act 1998 s 36

9 Beach Street and Reserve 300N Nepean Highway, Frankston

Merits Review, Declaration and Acquisition of easement

[2005] VCAT 1985

The application for review of the failure to grant a permit is dismissed and it is directed that a permit must not be granted.

It is declared pursuant to s 149A(1)(c) of the Planning and Environment Act 1987 ("the Act") that the existing use rights which attach to the land at 9 Beach Street, Frankston, allow the use of the land for purposes of "motel" conditional upon, or restricted to, 33 units plus an associated caretaker's dwelling.

Mr J Cicero, Solicitor. Mr Cicero called the following witnesses:

Mr R Appudurai of Counsel, instructed by Maddocks Lawyers. Mr Appudurai called the following witnesses:

Ms O Bawden, Honorary Secretary, who called Mr K Quinn, to give evidence and prove submissions on behalf of Long Island Residents Group, of which she was a member.

1 There are three applications before the Tribunal which are :

(a) An application under s 79 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicants (the motel owners) for review of the failure of the Frankston City Council ("the Council") to grant a permit for parking and access over a reserve within the prescribed time,

(b) An application under s 149A(1)(c) of the Planning and Environment Act 1987("the Act") brought by the Council for a Declaration that the existing use rights which attached to the land at 9 Beach Street Frankston allow the use of the land for the purposes of "motel" conditional on or restricted to 29 motel units plus an associated caretaker's dwelling, and

(c) An application under s 40(2) and (3) of the Subdivision Act 1988 ("the Act") brought by the motel owners for review of the failure of the Council to make a statement under s 36 of the Subdivision Act 1988 in Planning Permit Application No. 040043 that the economical and efficient servicing of, or access to, the land covered by the application requires the acquisition of a carriageway easement over the Council reserve comprised in Certificate of Title Volume 8599 Folio 450.

2 The proposal in Application for Review No. P162/2005 is for works associated with the existing car spaces at 9 Beach Street Frankston. These are the car spaces to the west of the motel in the area adjacent to the Council reserve.

3 It is proposed that these car spaces be accessed from Beach Street by an easement over the reserve. The motel owners have made application to the Tribunal for review of the failure of the Council to make a statement under s 36 of the Subdivision Act 1988 that the economical and efficient serving of, or access to, those car spaces requires the acquisition of an easement over the Council reserve.

4 The Council has made application for a declaration pursuant to s 149A(1)(c) of the Act that existing use rights for the motel at 9 Beach Street allow the use restricted to 29 motel units plus an associated caretaker's dwelling.

5 The subject land is on the north side of Beach Street between the Nepean Highway and Kananook Creek. The subject land is irregular in shape with a frontage of 39.53 metres to Beach Street, a depth of 52.10 metres and an area of 1895 square metres.

6 The subject land is occupied by a double storey motel with a centrally located crossover and a car parking area/courtyard. The motel rooms are orientated towards the central courtyard, except for two motel rooms which are part of an undercroft on the north-west corner of the motel building. There are 38 motel rooms and a caretaker's dwelling. The application for a declaration concerns a dispute between the Responsible Authority and the motel owners as to the number of motel rooms that have the benefit of planning permission. There are 17 car spaces which are accessed by the centrally located double crossover. The western portion of the subject land, between the motel building and the Council reserve, is occupied by landscaping, retaining walls, a concrete footpath, a barbecue and grass. This area is lower than the motel entrance, central courtyard and ground level motel rooms. It is accessed via a stairway towards the northern end of the subject land.

7 The Council reserve is part of the Kananook Creek Reserve which is described in the Officer Report as a linear strip approximately 7.5km long from Eel Race Road Seaford in the north to the mouth of the Kananook Creek in Frankston. The reserve in the vicinity of the subject land is accessed from Beach Street. The Kananook Creek Reserve contains a shared pedestrian/bicycle pathway which is presently being developed. This is known as the Kananook Creek shared pathway or the Kananook Creek Trail.

8 There is no constructed car parking on the subject land between the motel building and the reserve but it is used for informal parking. The permit application which is the subject of the Application for Review of Failure is for car parking on this part of the subject land with access by way of the easement to Beach Street which is the subject of the s 36 application.

9 The subject land is covered by the Frankston Planning Scheme and is in a Business 5 Zone which is the subject of Clause 34.05. Accommodation, which includes motel, is a Section 2 - Permit required use pursuant to the Table of uses at Clause 34.05-1. A permit is required to construct a building or to construct or carry out works pursuant to Clause 34.05-4.

10 The subject land is covered by Schedule 5, Frankston Central Activities District and Adjoining Zones, to Clause 43.04, Development Plan Overlay. Clause 43.04-1 provides that a permit must not be granted to use or subdivide land, construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the Responsible Authority (the Council). Clause 43.04-1 also provides that this does not apply if a schedule specifically states that a permit may be granted before a development plan has been prepared to the satisfaction of the Responsible Authority. Clause 2.0 of Schedule 5 provides that a permit is not required to construct a building or to construct or carry out works. It goes on to provide that buildings and works must be constructed in accordance with certain requirements for various precincts, but these requirements referred to height of buildings and are therefore not applicable.

11 The reserve is in a Public Park and Recreation Zone which is the subject of Clause 36.02. A permit is required to construct a building or to construct or carry out works, but this does not apply to a number of works, including works that might be expected as part of the Kananook Creek Trail.

12 Most of the reserve is covered by a Land Subject to Inundation Overlay which is the subject of Clause 44.04. A permit is required to construct a building or to construct or carry out works, including a fence and road works, pursuant to Clause 44.04-1, but this does not apply if a Schedule specifically states that a permit is not required. The Schedule provides that a permit is not required to construct certain buildings and works, which are works that might be expected as part of the Kananook Creek Trail.

13 Section 149A(1)(c) of the Act provides that a specified person may apply to the Tribunal for the determination of a matter if the matter relates to a provision of a Planning Scheme or Amendment permitting the continuation of a use lawfully existing before the coming into operation of the Planning Scheme or Amendment or permitting the use of buildings or works for a purpose for which they are legally erected or carried out before the coming into operation of the Planning Scheme or Amendment. Sub-section 149A(2) provides that the Tribunal may determine the matter and may make any declaration that it considers appropriate and/or direct that a specified body take or refrain from taking action specified by the Tribunal. Sub-section 149A(4) provides that the Tribunal's power under this section is exercisable only by a Presidential Member of the Tribunal or a Member of the Tribunal who is a legal practitioner. This power has been exercised by the Presiding Senior Member, who is legally qualified, and the Presiding Senior Member only has decided any legal questions that have arisen during consideration of these matters. The pronoun "we" has been used throughout for convenience only.

14 Section 36(1) of the Subdivision Act 1988 provides that an owner may apply to the Tribunal for leave to acquire an easement compulsorily if the Council states in writing that it considers that the economical and efficient access to land requires the owner of land to acquire an easement over other land and that the acquisition of the easement will not result in an unreasonable loss of amenity in the area affected by the acquisition. Sub-section 1(AAA) provides that in conferring powers on a Council under Sub-section (1) it is the intention of Parliament that in considering the matter the Council should make an assessment of the engineering and amenity aspects of the matter. Sub-section (1A) provides that the Tribunal may give leave subject to any conditions it thinks fit. Sub-section (2) provides that if leave is given the owner may compulsorily acquire the easement and the Land Acquisition and Compensation Act 1986 applies to the acquisition. Section 40(2) provides that an owner who requests the Council to make a statement under s 36 may apply to the Tribunal for review of a decision to refuse to make the statement.

15 Clause 63 of the Planning Scheme refers to Existing Uses. Its relevant provisions are set out in detail later in this decision

16 Clause 52.06 of the Planning Scheme relates to car parking and provides at Clause 52.06-1 the obligation for car spaces and the Table at Clause 52.06-5 sets out the number of car spaces required. The Table provides for one car space per motel unit and one car space per resident employee. It is also provided that a permit may be granted to reduce or to waive the number of car spaces required by the Table.

17 The Council would have refused to grant a permit if an Application for Review of the Failure to grant a permit had not been lodged on the following grounds:

1. The proposal would be detrimental to the amenity of the area.

2. The proposal is contrary to the proper and orderly planning of the area.

3. The proposed development would prejudice the proper future planning of the area.

4. The method of access to the proposed parking facilities I unsatisfactory and detrimental to the safety and amenity of the users of the Council reserve.

5. The proposed development does not make adequate provision for the separation of vehicular and pedestrian traffic.

6. The proposal relies on access across a Council reserve and Council does not consent to the use of its reserve.

7. The proposal is detrimental to the future development of the Council reserve.

18 Mr Appudurai summarised the Grounds as follows:

(a) would be detrimental to the amenity of the area [Ground 1];

(b) would be contrary to the orderly planning of the area [Grounds 2, 3 & 7];

(c) the method of access to the proposed car spaces, including the inadequate separation between (motor) vehicular traffic and the pedestrians/cyclists, would be detrimental to the amenity of the users of the reserve [Grounds 4 & 5].

In addition, the proposal cannot be implemented in the absence of the council's consent to access over the reserve [Ground 6].

19 The Council seeks a declaration pursuant to s 149A(1)(c) of the Act that the existing use rights which attach to the motel site, "allow the use of the land for the purposes of 'motel' conditional upon, or restricted to 29 units plus an associated caretaker's dwelling". While it is common ground between the parties that the motel currently consists of 38 units plus a caretaker's residence, there is dispute between the parties both as to the amount of units which the Responsible Authority has specifically permitted and the amount of units that the motel owners are entitled to maintain on the site.

20 The motel owners maintain that the Council has specifically given permission for 33 units plus a caretaker's unit on the site, while the Council submits that permission was only given for 29 units plus a caretaker's unit. It was further submitted for the motel owners that they were entitled to maintain the 38 units plus the caretaker's unit regardless of the permission that was given because permission was given for the site to be used as a motel and that is in fact the purpose of the use of the 38 units. The Council denies this submission.

21 It was further submitted that in relation to 36 units, the alterations were only made to internal parts of the motel and thus no planning permission was necessary in relation to those units. Finally, the motel owners submitted that the Council was estopped from exercising its powers to reduce the number of motel units that presently exist on the site.

22 We will discuss each of these submissions in detail below. However, before doing so, it is necessary to look in detail at the history of permissions that were given for the buildings on this site.

23 On 26 January 1966, the Melbourne and Metropolitan Board of Works (MMBW) issued a conditional permit (the 1966 permit) for the use and development of the land for the purposes of a motel in accordance with the endorsed plan. The permit contained the following words :

To have buildings and works erected thereon in accordance with the attached endorsed plan and to be used for the purpose of a motel.

24 The permit was then endorsed with the following words :

Identical with the plan forwarded with the Council's copy of the application.

25 Further, there were conditions on the permit which, inter alia, read as follows :

The layout of the site and the size of the proposed buildings and works as shown on the endorsed plan shall not be altered or modified (whether or not in order to comply with any Statute, Statutory Rule or By-Law or for any other reason) without the consent of the Board.

26 We are satisfied that the plan shown to be the plan endorsed on the permit is the plan which we were shown. The plan consists of 20 units plus a manager's unit.

27 On 2 June 1966, the Council received an application to amend the plan endorsed pursuant to the 1966 permit. The amending plan proposed the development of a 24 unit motel. Unfortunately, there is no evidence on Council files as to the application ever being approved. However, there are a number of reasons for suggesting that the amendment was in fact approved. First, on viewing the motel as it stands today, it is clear that it was not built in accordance with the plan referred to in the 1966 permit. For example, the plan was for a group of four units on the south side of the motel. These units do not exist, and it is clear that they were never built.

28 Secondly, when later plans were sent to the Council for further permits, they showed that 24 units in fact existed. It should be noted that, in relation to an application in 1970, the units were numbered to give the impression that there were only 20 units. However, when one counts the units that in fact existed, they amount to 24.

29 Thirdly, there is an internal memorandum dated 13 June 1966 headed MELBOURNE AND METROPOLITAN BOARD OF WORKS - SHIRE OF FRANKSTON, which we find in all probability was made by a council officer which contains, inter alia, the following words :

PROPOSAL - To construct a 24 unit Motel & service quarters ...

RECOMMENDATION - .... That Council offer no objection to the amending application subject to the usual MMBW conditions relating to motels.

30 Fourthly, the MMBW on 2 June 1966 wrote a letter to the Council in the following terms :

With reference to the permit issued by the Board on 26 January 1966, ... for the purpose of a motel, I enclose herewith a copy of an amending plan submitted on behalf of the applicants.

Your council's comments on the plan in due course would be appreciated.

31 By a memorandum from the Council to the MMBW dated 28 June 1966 it is stated :

Receipt of the above application is acknowledged and I desire to advise that council offers no objection to the amending application subject to the usual MMBW conditions relating to motels.

32 For all of the above reasons, it seems to us that, on the balance of probabilities, there is an inescapable conclusion that in June 1966 amending plans for 24 units for a motel on the site were approved by the Responsible Authority. Thus, even though the points raised by Mr Appudurai, in particular the numbering of the plan for the 1970 application, gives us some reason to question whether a valid amending permit was issued in June1966, on the balance of probabilities it is likely that such a permit was in fact issued. Thus we find not only would the permit have been issued but it would have been issued subject to the plan which was attached to it showing 24 units and similar conditions to which I have already referred relating to the original January 1966 permit. We find that the similar conditions would have been attached because of the words of the memorandum dated 28 June 1966 from the Council to the MMBW. That is, "application subject to the usual MMBW conditions relating to motels".

33 On 21 October 1970, the Council issued a further permit in relation to the motel (the 1970 permit), permitting the building of a further unit to the motel. Thus, after that work was complete, the motel should have had 25 units for which permission was given plus the caretaker's unit.

34 On 23 September 1977, a further permit was issued in respect of the site granting permission for a further 8 units to be built on the motel site (the 1977 permit).

35 On the findings we have made, this permit would permit the motel to have 33 units plus a caretaker's unit. That is 24 units pursuant to the permit of June 1966, 1 unit pursuant to the 1970 permit and 8 units pursuant to the 1977 permit.

36 It should be noted that before the 1977 permit was issued, there was an internal working document prepared by the Responsible Authority's officer. That document which is Exhibit MC5 to the statement of evidence of Michael Craighead, inter alia, states as follows :

Proposal - To extend the existing motel by eight (8) additional units and associated car parking .

Comments - The application proposes the provision of 17 car parking spaces in the existing car parking area and 13 car spaces in the vicinity of Council's Reserve with access from the Reserve. Investigations have indicated that the Reserve had been purchased for the purpose of 'road'. The total accommodation of the Motel, i.e. existing and proposed, will be 29 units with a Manager's residence and office. The proposed provision of 30 car spaces complies with the requirement of 1 car space per unit. As the provision of car parking on site relies on obtaining access from the Council Reserve, consideration of the application was deferred until investigation with respect to the lease of the land has been undertaken.

37 While Mr Appudurai suggested that this was significant in showing that the Council's submission was correct that there was only permission for 29 units, in our view it is a mistake made by the officer who prepared the report in that he counted the numbers on the accompanying plan rather than counting the units themselves. Therefore, this does not do anything to change our view that, prior to the 1977 permit, the site had permission for 25 units plus a caretaker's unit, and subsequent to the 1977 permit being issued permission was for 33 units plus a caretaker's unit.

38 Mr Cicero submitted in relation to the other five units in the motel, ie units 34-38 inclusive, that there were existing use rights in relation to those units. He stated that those rights derive from the 1966 permit as amended in June 1966 and as such the rights should be characterised by reference to the permit and the definitions which were in existence under the Planning Scheme at that time. As at 1966, the Interim Development Order 1961 was in force and defined "motel" as :

'Motel' means a building or group building (sic) within the same curtilage primarily used or intended to be used for the temporary accommodation of persons travelling by motor car provision for the parking of which is made within the curtilage.

39 Mr Cicero then stated that it was common ground that the site had been a motel since 1966 and had been used continuously for that purpose since that time. Further, he stated that neither the 1966 permit or the definition of "motel" at the time of the 1966 permit restricted the use of land as a motel for a specific number of units. He further stated that the additional units, with the possible exception of units 37 and 38 (which may have involved the closing in of an undercroft) have been created by internal reconfiguration of the existing building and such alterations have occurred prior to the applicant purchasing the motel and subsequent to 1977. He also added that there had been no increase in the floor area of the building envelope as shown on the 1977 endorsed plans.

40 He further stated that the permit conditions on permits for both use and development that require compliance with the endorsed plans cannot prevent new buildings and works being undertaken at a later stage. He stated that the 1970 and 1977 permits were granted for the construction of additions to the motel site but those permits were building and work permits only and did not alter the existing use rights that derive from the 1966 permit as amended in June 1966.

41 Mr Cicero also relied on certain statutory provisions and provisions from the Planning Scheme. Section 6(3) of the Act provides that

(3) Subject to sub-sections (4) and (4A), nothing in any planning scheme or amendment shall -

(b) prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation;

42 He then relied on clause 63 of the Planning Scheme, the relevant provisions which read as follows :

An existing use right is established in relation to use of land under this scheme if any of the following apply :

•

The use was lawfully carried out immediately before the approval date.

•

A permit for the use had been granted immediately before the approval date and the use commences before the permit expires.

•

A permit for the use has been granted under clause 63.08 and the use commences before the permit expires.

•

Proof of continuous use for 15 years is established under Clause 63.11.

•

The use is a lawful continuation by a utility service provider or other private body of use previously carried on by a Minister, government department or public authority, even where the continuation of the use is no longer for a public purpose.

63.05

Sections 2 and 3 uses

A use in section 2 or 3 of a zone for which an existing use right is established may continue provided :

•

No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.

•

Any condition or restriction which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or he extent of activities within the use.

•

The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.

63.11

Proof of continuous use

If in relation to an application or proceeding under the Act or this scheme, including an application for a certificate of compliance under Section 97N of the Act, the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.

An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period, unless either :

•

At any time before or after commencement of the 15 year period the use has been held to be unlawful by a decision of a court or tribunal.

•

During the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme.

43 Mr Cicero then concluded that the internal alterations did not require any planning permission as clause 62.02 of the Planning Scheme specifically exempts "the internal re-arrangement of a building or works provided the gross floor area of the building, or the size of the works proposed is not increased". Further, he stated the creation of additional units did not require any additional car parking to be provided on the land or permission for car parking dispensation as clause 52.06-1 of the Planning Scheme provides that :

A new use must not commence or the floor area of the existing use must not be increased until the required car spaces have been provided on the land.

Where the floor area occupied by an existing use is increased, the parking requirement only applies to the floor area of an extension of the use of the site area provided the existing number of car spaces is not reduced.

44 He then relied on Norman v The Council of the Shire of Gosford and Another [1975] HCA 15; (1975) 132 CLR 83 for the proposition that protection is accorded to an existing use right and was not lost by the intensification of the purpose for which the land was used.

45 Mr Appudurai for the Council submitted that permission for the motel to be built and used was under the permit which clearly limited the amount of units to that shown on the plan. We have above found that there are plans authorising 33 units plus a caretaker's unit. The permits that were given indeed do make it clear that the motel must be built in accordance with the plan and the special condition is as stated above which we will repeat now, that :

The layout of the site and the size of the proposed buildings and works as shown on the endorsed plan shall not be altered or modified (whether or not in order to comply with any Statute, Statutory Rule or By-Law or for any other reason) without the consent of the Board.

46 It would appear to us that increasing the number of motel units, even if that did not mean increasing the floor space of the motel, was an alteration or modification of the plan, which means increasing the number of units in the motel is in breach of the condition referred to.

47 The Gosford case is not authority for the proposition, as Mr Cicero submitted, that if there is a right to use the land for a motel that can be intensified. The Gosford case concerned a quarry that did not have a permit but had always operated in that way. It was under those circumstances that the High Court allowed the use to be intensified in that case. In the instant situation the use is limited to the permission that was given on the plan. In the Gosford case there was no limit, and the Planning Scheme did not operate. At pp 85 and 86 of the Gosford case, Mason J stated :

His Honour began by finding that the appellant started to use the land in 1952 for the purpose of removing topsoil and filling therefrom, this being a purpose for which he acquired it. ....

However, the primary judge went on to find that in 1972 there was a change in the scale of removal of topsoil and filling with a consequence that, in that year and thereafter, production was greatly expanded. ...

To my mind the crux of the matter is that at all times after 1st January 1972, as before, the use to which the land was put was the removal of topsoil and filling for the purpose of sale. The nature of this use was not altered ...

48 Further, clause 63.05 of the Planning Scheme makes it clear that for existing use rights to operate pursuant to clause 63.01 :

No building or works are constructed or carried out without a permit. .....

Any condition or restriction to which the use was subject continues to be met this includes any implied restriction on the extent of land subject to the existing use right or to the extent of activities within the use.

49 In this particular instance, the permit that was issued clearly forbade alteration or modification without consent. There is no evidence that consent has been obtained except for 24 units plus a caretaker's unit. Further, the permission that was given in 1966 and followed the subsequent permissions was for the building to be used in accordance with the plans there presented. Those plans had a finite number of units referred to, and once the amount of units was increased the condition of those permits was breached.

50 Mr Cicero suggested that clause 63.05 was simply a machinery provision and did not apply to this situation. In our view, clause 63.05 is a limitation on the operation of clause 63.01. It is not a clause which has been inserted just for the purpose of making clause 63.01 operate. To restrict the use of clause 63.05 to that suggested by Mr Cicero is to give it a meaning which was never intended by those who drafted the provision.

51 Further, the operation of clauses 63.01 and 63.11 makes it mandatory that the use should have been for a continuous period of 15 years. In this particular instance it is not at all clear that the extra 5 motel units have been built or used for 15 years. Mr Cicero sought to avoid this difficulty by submitting that, as the Council was the applicant for the declaration in this proceeding, it had the onus of proving that the units had not been continuously used for 15 years. He referred to the Victorian criminal law and said the onus of proving that a defendant did not fall within an exception was on the prosecution and he cited Bell v Hyde [1939] VicLawRp 44; (1939) VLR 300; R v City of Oakleigh Ex parte New Gamble Brickworks Pty Ltd [1963] VicRp 92; (1963) VR 679.

52 It must be remembered that this is not a criminal law case and matters of proof in these matters are on the balance of probabilities. The Council, by producing the permits that it has, has sufficiently shown that the use of the motel for more than 33 guest units is not permitted. One would have thought it was within the motel owners' powers under normal circumstances to be able to prove that the motel units were used for a continuous period of 15 years. Where a use which is not permitted has been carried on, it would be almost impossible in most cases for an authority such as the Council to show that that use was going for a lesser period than 15 years.

53 There was no evidence presented before us as to why previous owners of the motel could not have been called. The motel owners, through a search of title, could have ascertained who were the previous owners of the motel. By calling those previous owners to give evidence it would prove with some certainty on what date the unauthorised use commenced. If the previous owners could not be found the current owners of the motel would have provided a reasonable excuse for not calling them. However we were not given any evidence that the motel owners searched for the previous owners and were unable to locate them. In our view the principle in Jones v Dunkel (1959) 101 CLR 298 applies in this situation. That is where a party fails to call a witness, and does not demonstrate that that witness was not available to be called, an implication should be drawn that that evidence would not have assisted the party that could have called the witness. In our view it is the motel owners that could have called the previous owners to show when the use of these rooms commenced. They failed to do so. Thus we imply that that evidence would not have assisted them.

54 In any event it does not really matter who had the onus of proving whether or not the motel units were used for a continuous period of 15 years, because of our finding that they were not permitted to be used by the permission that was originally given and, as a result of the wording of clause 63.05 of the Planning Scheme, the doctrine of continuous use did not apply to this situation.

55 Even if we are wrong about the matters to which we have just referred, after having viewed units 37 and 38, it is clear to us that those units were probably constructed by an alteration to the exterior of the motel. In all probability those units were built in an open undercroft area of the motel. To build the units could have involved altering the outside of the motel by installing extra walls and windows. This is clearly an alteration to the building and does not come within the principle submitted to us by Mr Cicero in any event.

56 To allow intensification of use in circumstances like this would be likely to cause ridiculous results. It is clear from the various responsible authority's memoranda at the time when the permit was issued, the responsible authority was extremely concerned that there would be sufficient parking for the number of units. If the number of units could be increased by keeping within the same building envelope without making extra provision for parking, the idea that the motel should provide sufficient parking accommodation for its own needs would be completely thwarted. Even though clause 52.06-1 of the Planning Scheme may not have been in existence in 1961, the same reflects the position of the Responsible Authority at that time. It will be noted that the endorsed plans all had provision for the required parking. Clause 52.06 reads as follows :

To ensure the provision of an appropriate number of car spaces having regard to the activities on the land and the nature of the locality.

In our view, it is clear from the correspondence and memoranda and the permits themselves that have been shown to us that this was the type of attitude that the responsible authority had in mind when the permit was granted, and to allow the units to be increased without having consideration of the parking matters would lead to a ridiculous result.

57 Mr Cicero submitted that the Council was estopped by its conduct from bringing this proceeding to allege that the motel owners were not entitled to 38 guest units because that is the amount of guest units that were in existence at the time they purchased the property in 2001.

58 In order to make out the estoppel the motel owners relied on a letter from their solicitor Meier Denison dated 6 July 2001 to the Council, and a reply made by the Council on 7 August 2001. The Meier Denison letter reads as follows :

We act on behalf of the Purchasers to the abovenamed business and premises, Mr Michael Barnett and Mrs Kathleen Barnett.

Please find enclosed Application Form re : Land Information Certificate and Request for Building Approval particulars together with our cheque for $50.00 in payment of the fees for the same.

When responding, we would be grateful if you could advise whether there are any special requirements or formalities that need to be attended to prior to settlement by virtue of the premises being used as a Motel. In particular :

(a)

Are any permits required ?

(b)

Are there any breaches of the relevant planning instrument/zoning?

(c)

...

59 The Council's reply to that letter is in the following terms :

I refer to your correspondence to Council in which you have requested information relating to the use of the above property as a Motel.

The property is located within the Business 5 Zone of the Frankston Planning Scheme in which a permit is required for the use of the property as a Motel. Council records indicate that planning approval has been granted for the use of the property as a Motel and this use may continue except where the use stops for a continuous period of 2 years, or stops for two or more periods which together total 2 years in any period of 3 years.

Within the Business 5 zone, a planning permit is required to construct a building or construct or carry out works.

60 Mr Cicero then said, relying upon the representations in the letter from the Council, the applicants proceeded to settle the Contract of Sale. We were handed a copy of the Contract of Sale for the property and it would appear that settlement date of the property in the contract was referred to as 7 August 2001. Neither of the motel owners gave evidence in this proceeding to support the contention made by Mr Cicero that they settled this property upon reliance of the representations in the letter from the Council. Further, given the fact that the letter itself is dated 7 August and the property was due to be settled on 7 August, it is unlikely that the normal course of post would have delivered this letter to the motel owners' solicitors prior to the time of settlement. It would have been a very simple matter for the motel owners who were in the hearing room for most of the time of this proceeding to have given evidence about the reliance they made on the Council letter before they settled. However they were not called to give such evidence. Therefore, on the principles of Jones v Dunkel which we have outlined above, we will infer that their evidence would not have assisted their case. It therefore follows that without proof of reliance on the representation, the motel owners cannot rely on the principle of estoppel. That, in itself, would be enough to dispose of this point.

61 In any event, the letter of 7 August does not state the number of motel units that are permitted to be constructed or used on the site. If this was of concern to the motel owners, they could have sought clarification. We disagree with the submission of Mr Cicero that by not mentioning that the permit was for a particular number of motel units, the motel owners were entitled to assume that the 38 units had proper planning permission. It would be unrealistic to expect a Council, which would have many applications of this nature made to it in a year, to perform an audit of the property before giving the information required. In our view, the motel owners could not or could not reasonably have been misled by the information that was delivered to them by Council. Further, if the motel owners were concerned about the number of units in the motel, they should have instructed their solicitors to write to the Council informing them that there were 38 units in the motel and asking specifically whether there was permission for those number of units. That was not done.

62 There was considerable argument between the parties as to whether estoppel could apply to a government or semi-government authority such as the Council in a situation like the present. The High Court in Attorney-General for the State of New South Wales v Quin (1989) 170 CLR 1 at p 17 stated as follows :

The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power.

63 In a similar vein the High Court stated in Ansett Transport Industries (Operations) Pty Limited v the Commonwealth of Australia and Others [1977] HCA 71; [1977] 139 CLR 54 at 74 :

There is a general principle of law that a public authority cannot preclude itself from exercising important discretionary powers or performing public duties by incompatible contractual or other undertakings.

64 Mr Cicero to support his case relied on the decision of this Tribunal in VBI Properties PL & Others v Port Phillip CC [2000] VCAT 885 (30 April 2000) Member Komesaroff. Even though in that case it was submitted that the Council had in a letter made a representation of fact which it was allegedly estopped from resiling from, the estoppel was not made out. Thus, in our view, the VBI case does not, in any way, alter the proposition laid down by the High Court in both the Ansett case and Quin's case. Therefore, in these circumstances, the Council is not estopped from seeking the declaration which it now seeks.

65 Thus we will make the declaration requested by the Council except with the substitution of "33" instead of the "29" requested.

66 The motel owners have applied pursuant to s 40(2) of the Subdivision Act 1998 as a result of a decision by the Council to refuse to make a statement pursuant to s 36(1)(c) of that Act that the conditions therein are fulfilled for an easement to be granted to the motel owners over Council reserve land for the purpose of the owners being able to provide 12 or 13 car spaces in the western portion of the motel property. Plans have been submitted to the Tribunal as to the precise position of the proposed easement. The relevant part of s 36 of the Subdivision Act 1998 reads as follows :

(a) when considering .... an application for a permit 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)

acquire ... an easement

(i)

....

(ii)

other land in the vicinity -

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

67 When the 1977 permit was issued to the then motel owners in respect of the site to extend the motel by 8 units and associated car parking, there was an officer's report which dealt, inter alia, with the use of the reserve to enable cars to be parked on the western portion of the motel's land. We have already referred to that report previously in this decision.

68 As a result of the 1977 permit, the then motel owners gained permission to develop a car park on the western boundary of the motel site adjacent to the Council reserve between the motel and Kananook Creek. It should be noted that vehicular access to the western portion of the motel site is not currently possible from the motel itself because there are buildings right up to that portion of the land.

69 On 22 August 1977, Council resolved :

THAT THE APPLICANT (the then motel owner) BE ADVISED AS FOLLOWS -

A. THAT COUNCIL IS PREPARED TO FAVOURABLY CONSIDER AN APPLCIATION FOR A TOWN PLANNING PERMIT WITH ACCESS TO THE MOTEL FROM THE COUNCIL RESERVE.

B. THE COUNCIL IS PREPARED TO NEGOTIATE FOR A SHORT TERM LEASE OF THE BALANCE OF THE LAND FOR A GARDEN AREA ONLY.

70 In order to facilitate the parking conditions contained in the 1977 Permit the Council and the then owner of the motel, on 18 November 1977, entered into a lease of that part of the reserve which was necessary for a carriageway for vehicles to the western portion of the motel. The lease was for a period of two years with some options. However, it would appear that the lease was terminated on 21 October 1978.

71 Since that time the motel patrons have been using that part of the Council reserve which had been so leased to be able to use the car spaces on the western side of the motel. This use has been in spite of numerous Council complaints. That is, the part of the reserve used by the motel guests serviced the car park by an informal gravel track located within the reserve linking the western boundary of the motel site to Beach Street. It should further be noted that, around about 1987, there were negotiations for a new lease of the area between the then motel owner and the Council. Apparently a lease was drawn up but never executed.

72 Further, in about October 1996, the motel owners requested permission to fence off the reserve down to Kananook Creek which request was declined by the Council. The reason cited for declining the request was Council's intention for the commencement of the reserve's development as a shared pedestrian/bicycle pathway.

73 By letter dated 21 October 2004, Council informed the applicants that it would not provide its consent in relation to access to the motel site through the reserve. In response to that letter, the motel owners' solicitors applied for the Council to make a statement pursuant to s 36. Upon the Council not making a statement, on 19 January 2005, the motel owners commenced this proceeding citing the Council's failure to make a statement under s 36 of the Subdivision Act 1988 within 49 days of the date of the receipt of the written request.

74 The Council's acquisition and use of the reserve is set out in the statement of evidence of Michael Craighead, which was tendered to the Tribunal upon him verifying the same. In that statement beginning at paragraph 24, he states as follows :

In or around June 1965, Council purchased the Reserve from the previous owners of the land at 9 Beach Street, Frankston. Council records indicate that the purchase of the land was a condition on which Council ultimately granted the 1966 Permit.

Council has been acquiring land along both the eastern and western sides of Kananook Creek since the early 1950's. At the time of the first acquisitions, Council was of the view that it would be necessary to dredge Kananook Creek on a regular basis. Access to the Kananook Creek for this purpose was the original intention of the first acquisition.

For the most part, as in the case of the Reserve, acquisition has been effected as a consequence of planning permit applications being lodged with Council.

In this fashion, over the past 5 decades, Council has acquired an uninterrupted parcel of land, stretching approximately 7 kilometres along the Kananook Creek.

In respect of that portion of the Kananook Creek which runs between Beach Street and Fiocchi Avenue alone, Council has acquired land from the rear of the 16 properties which are situated between 374-416 Nepean Highway, Frankston.

..... the Reserve was originally purchased by Council for 'road purposes'.

Whilst this may have been Council's original intention, the Reserve was never designated as a road on title or used or constructed as a road.

Similarly, on 12 July 2004, the Council resolved that parts of the remaining land acquired by Council for road purposes, on the eastern side of Kananook Creek (between Beach Street and Fiocchi Avenue), be discontinued and that the land be used for municipal purposes. .... The remaining parcels of land acquired by Council for road purposes are in the process of being discontinued.

The declaration that this land be used for municipal purposes is consistent with Council's currently intended usage of the land adjoining Kananook Creek, specifically the creation of the Kananook Creek Reserve.

The Kananook Creek Reserve occupies the 7 kilometre strip of linear open space land, previously acquired by Council, which runs adjacent to the Kananook Creek. Council envisages that the Kananook Creek Reserve will form the hub of a much larger network of shared paths and walking trails, which will ultimately link with paths north and south of the municipal boundaries, to form part of the State's Bay Trail Network.

In this regard, Council has completed the path network to its southern and northern boundaries and is working towards completion of the middle section throughout the central activities district (CAD) along Kananook Creek to Mile Bridge.

A related path boardwalk has also been completed between Oliver's Hill and the Frankston Yacht Club. This section alone cost in excess of $2 million of which approximately one third was funded by State Government Grants.

Ultimately, it will be possible to walk or cycle from outside the municipal boundaries across the entire city, with little road interaction. The central spine of the shared path will also connect with other existing walking paths such as the one along the Seaford Foreshore Reserve and those along the Kananook Creek, north of Mile Bridge.

Council has been planning the Kananook Creek Reserve since the mid-1980's.

The Reserve land is prominent in respect of that part of the Kananook Creek Reserve which runs between Beach Street and Fiocchi Avenue, given that it serves as a gateway between the urbanised Frankston CAD and the natural Reserve of the Kananook Creek which runs along the rear of the residential areas abutting the foreshore.

In recent years, Council has expended a considerable amount of money in developing this section (that is, Beach Street to Fiocchi Avenue) of the Kananook Creek Reserve including :

in 2003, Council expended $169,000 to acquire portions of land at 398 and 400 Nepean Highway to complete the uninterrupted ownership of the land running adjacent to the Kananook Creek, between Beach Street and Fiocchi Avenue;

between 2000-2003, Council expended approximately $53,000.00 clearing the land. Of this amount, $31,000.00 was provided to Council in the form of a grant from the Corridors of Green Project (an initiative by Parks Victoria); and

in he present financial year, Council expended $63,108.00 constructing the linear pathway which has been completed between the northern boundary of the Reserve and Fiocchi Avenue.

The extension of the linear pathway through the Reserve remains the last part of this section of the Kananook Creek Reserve to be constructed. At present, however, there does exist a poorly formed gravel track linking the existing linear pathway to Beach Street.

I have reviewed plan SD 345 prepared by Council in respect of the proposed works to be undertaken on the Reserve. To permit vehicular access over this part of the Reserve would be wholly inconsistent with this plan and with the proposed operation of the Kananook Creed Reserve.

Council Plans for the Shared Pathway at the rear of the Beach Motel

75 There were two plans tendered into evidence by the applicants which were prepared by EDAW Gillespies. The plans were prepared in or around August 2004. One of the plans so prepared was a construction plan for the development of the proposed Bay Trail south of Beach Street in the vicinity of the motel. By and large both these plans, including the construction plan, could have accommodated the plan by the motel owners for an easement over the reserve so that the motel guests would be able to use the car park at the western side of the motel. On the basis of the two EDAW Gillespies plans John Patrick, a Landscape Architect, prepared a plan in June 2005 which plan suggested that the proposed easement and the linear trail proposed by the Council could exist alongside of each other. The amount of cars that would be using the proposed easement would be relatively few and, in Mr Patrick's view and in the view of another expert called by the motel owners, Mr Dunbabin, would not greatly interfere with the public use of the proposed pathway. On the other hand Mark Travers, who is a Senior Landscape Architect, within the Urban Strategy Department, Planning and Development group of the Council, has prepared a plan (SD 345) which plan would have some difficulty being implemented if the proposed easement was granted.

76 A statement of evidence of Mark Travers was tendered at the hearing of the application and Mr Travers deposed to the correctness of that statement. At paragraphs 26, and following, Mr Travers describes his detailed concept for the reserve between the motel and Kananook Creek. He states as follows :

The central pathway is shown to be constructed of stabilised granite gravel with timber edging. It is intended for shared usage (meaning pedestrian, wheelchair and bicycle). There is provision for maintenance vehicles to enter the Council reserve (the timber bollards at the entrance to the central pathway can be removed for this purpose). It is envisaged that maintenance will occur on monthly basis.

To enable equal access for all users to the picnic facilities and reserve beyond, the Beach St entrance to the pathway is based on a standard Council detail SD 345 which effectively splits traffic entering and exiting the Council reserve. Between the split pathway, entrance signage and low indigenous plantings is proposed which will, in combination, announce the entrance point to the pathway, whilst preventing an excess of hard surfaces.

The pathway widens from 2.5m to 9m to provide the base of the picnic facilities whilst still allowing north bound pedestrian movement through the Council reserve. The pathway then narrows back down to 2.5m and joins up with the constructed portion of the pathway to the north of the Council reserve which then leads into a boardwalk.

A canoe access deck is proposed adjacent to the picnic facilities allowing safe access to the creek edge. A preliminary site inspection with Melbourne Water representatives has indicated that this would be possible with further design development.

The deck and handrails are to be constructed of ACQ treated pine with a cypress pin sub-structure. 150mm diameter timber piles are to be used as a foundation for the canoe deck, to be driven to a depth of 3m below existing creek edge surface level.

The canoe access deck is designed in two levels: a large viewing deck providing shared usage access (at the same level as the pathway), plus a lower canoe deck which allows direct canoe access to the creek. The deck is designed to sit mainly on the Council reserve with a minimal penetration into the creek.

As mentioned above, the canoe access deck is closely associated with the picnic space; the two elements combined form the central focus of the Council reserve. The finished surface level of the canoe access deck is flush with the finished surface of the cental pathway to allow wheelchair access to the deck and views of the creek. The canoe access deck extends the available site space and allows visitors of limited mobility to experience the creek environs.

As also mentioned above, it is recommended that the existing picnic facilities on the Council reserve be removed for reasons including that the present state of disrepair of the facilities poses a hazard to public users, the facilities are poorly located because they are hidden from view from the Beach St entrance and are located in close proximity to a large sewerage pit. An important concept which informed the design of the new picnic facilities was to design the facilities in such a way that user will recognise Council reserve and the facilities within it as being intended for public use. The existing picnic facilities are located and designed in a way that implies ownership of the Council reserve by the adjacent motel.

The intention behind the location of the proposed picnic area to be in associated with the timber canoe access deck is to allow public surveillance of park users (which in turn increases the site amenity) whilst firmly establishing the role of the Council reserve as an integration point between the natural and the urban environments.

The picnic area consists of timber picnic tables, a timber bench, two stainless steel BBQ's and a steel/timber shade structure.

The picnic tables would be constructed as per Council's standard detail SD 700.

The timber bench would be constructed of a cypress pine sub-structure with dressed spotted gum surface.

The BBQ's are D.A. Christie's stainless steel Cooper single column units which are visually unobtrusive to the site.

The design philosophy of the shelter is to create a visually unobtrusive structure of simple forms. Constructed of galvanised steep uprights with recycled timber slatted roofing, the shelter has been designed to provide shade from sun only and is not intended for all weather protection. From the main entrance point to the Council reserve, the shelter is viewed 'side on', so as to minimise the visual impact of the shelter on the Council reserve whilst providing maximum shade to users of the picnic facilities.

All vegetation introduced to the Council reserve will be sourced from local provenance vegetation and to comply with the Coast Banksia/Swamp Scrub EVC Mosaic.

The east boundary of the Council reserve will be revegetated with 4 large shade trees, low shrubs, grasses, and ground covers. It is envisaged that public users of the Council reserve will spend most time at the picnic facilities and so larger shrubs are planned for the edge of the picnic area to effectively screen views between the Council reserve and the adjacent Motel.

The vegetation along this boundary will also act to block public access to the retaining wall of the adjacent Motel and the disused large pit of a derelict septic tank which is incorporated into the retaining wall. This is indicated on the plan as a triangle of concrete to the north of the proposed picnic area.

The west (creek edge) boundary of the Council reserve is to be planted with riparian vegetation. The planting incorporates low shrubs, grasses and groundcovers into the existing growth of Phragmites. The planting along this edge acts both to stabilise the creek bank whilst creating a physical barrier between the creek and the public users of the Council reserve.

The central grassed areas gives the Council reserve an open aesthetic allowing visual surveillance of the picnic facility users from Beach Street. It is envisaged that these grassed areas with (shade trees above) will be utilised by the public as picnic areas increasing the potential users of the picnic facilities. It is also envisaged that this may be used as a gathering space for groups before or after walking the shared pathway.

With reference to the detailed concept plan and the description of the proposed picnic facilities and the canoe access deck set out above, the entrance to the Kananook creek reserve shared pathway has been carefully designed to create generous landscape opportunities that :

continue the development of the Bay Trail strategic project of which this site forms an important connection point, linking the paths of Frankston South and the Mornington Peninsula Shire to the networks of Seaford and the City of Kingston beyond;

develop the Council reserve as an important gateway linking the Frankston business district to the Kananook creek reserve. Funding has recently been acquired by Frankston City Council for the 2005/2006 financial year to develop the eastern edge of the Kananook Creed Blvd which will effectively link the Council reserve (and the shared pathway which starts at the Council reserve) to the recently developed Frankston Life Saving Club, Long Island reserve and Frankston pier forecourt beyond;

creates a public facility that recognises the Kananook creek as a valuable asset of Frankston City. It is intended to provide a landscape that accommodates for increased future usage of the Council reserve in the form of appropriate signage sheltered picnic facilities, open grasses spaces and a timber deck that will allow access to the creek environs for all members of the community.

The detailed Landscape concept will require refinements at a larger scale. However, I am confident that the proposed environs will offer a high quality public amenity for users of the Council reserve and the Kananook Creek reserve area more generally.

In conclusion, the landscape opportunities inherent in Council's plan for the Council reserve will create a spacious, safe, functional and environmentally sensitive public environment which will enhance the landscape character of the area.

77 Mr Cicero, on behalf of the motel owners, submitted that the true Council proposal is contained in the EDAW Gillespies plans rather than the detail plan prepared by Mr Travers. He stated that the EDAW Gillespies plan is a construction plan and it is a plan that has been approved by Council. On the other hand he stated that, in relation to the plan prepared by Mr Travers, there had been no resolution of Council and it had not been signed off by Mr Travers' manager. Mr Travers gave evidence that his plan was the last stages for the remaining link of the Kananook Creek site, even though at this stage there was no plan for the southern section of the Kananook trail because there had been a lack of funding. He further stated that this particular section of the Kananook site was important because it was the connection to the central business area of Frankston. In his view, he stated that the vehicles entering the trail from Beach Street would be a danger to members of the public and it would have a detrimental effect upon the trail which was being constructed. Mr Travers admitted that save for one section of Frankston residences, the plan had not been discussed with members of the public or the motel owners. However, he stated that there were no requirements for the plan to be submitted to the public. Further, he said before the plan could be put into operation, it would need to be signed off by his manager.

78 Mr Cicero suggested that the plan was created by Mr Travers in order to thwart his clients' application. We do not accept that proposition. On examining the EDAW Gillespies plans and the plan prepared by Mr Travers (SD 345), and after hearing various people giving evidence in this matter, we conclude that plan SD 345, is a far superior concept to that contained in the EDAW Gillespies plans, and such a plan would be more likely to promote the general amenity of the area than would the EDAW Gillespies plans. In particular, we were impressed with the BBQ and shaded areas proposed in plan SD 345, which would encourage members of the public to use the area of the Reserve. We also note that if the easement were to be acquired the shaded and BBQ areas, as proposed by Mr Travers, could not be located in the position that it was, because it would be contrary to the easement that was proposed by the motel owners. In our view, it is likely that the plan SD 345 will be adopted and eventually put into operation by the Council, subject to obtaining funding. We note that funding has been obtained for large portions of this trail in other places and it is therefore in all probability likely that funding will be given for the proposals put forward by Mr Travers in SD 345. In any event, the Travers plan was only a further development of the EDAW Gillespies plans which have been approved by Council. Further, we find Mr Travers to be a witness of truth and competence and his proposals for the reserve are likely to be implemented. We accept Mr Travers' opinion as stated in the quotation referred to above.

79 Section 36 of the Subdivision Act 1988 states :

the Council ... considers that the economical and efficient ... servicing of, or access to, land covered by .... Proposed amendment, application or permit requires the owner of land to -

80 In this particular instance, the "other land in the vicinity" is what has been described as the proposed easement on the west side of the motel's boundary.

81 The word "requires" as used in s 36 has not, insofar as our searches have been able to find, been previously interpreted by judicial or tribunal authority. However, the word "requires" has been interpreted as used in s 50(4) of the Freedom of Information Act 1982 in Secretary of Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331 at 342 ff. There, the Court of Appeal (Phillips JA) stated :

For his part the respondent contended that the word 'requires' in s 50(4) meant no more than 'needs': it did not mean 'demands' as the departments contended ...

Our task is to construe the word "requires" that in that particular provision, and I doubt that generalisations about how the Act should be approached will be helpful in that regard. Of first importance must be the legislative context itself and with that to guide, I think the word is used in the sense of 'demands' or 'necessitates'. ...

Regularly, of course, statutes do use the word 'requires' or a variant deliberately to convey a sense of the imperative; when a person is described as 'required' to do something or other, that surely means that he or she is obliged to do it. .... Moreover, in the end I do not think that the respondent's case is advanced much, if it all, by the apparent difference between 'needs' and 'demands'. In the four Victorian cases to which we were referred the distinction was drawn in the context of the landlord and tenant regulations of the day, under which notice to quit might be given if the landlord reasonably required the premises for occupation by him - or herself. Where premises are 'required' for a given purpose, that may mean that the premises are needed, or without need are simply demanded, and it was important to the tenant to establish whether need on the part of the landlord had to play some part before notice to quit could lawfully be given, or whether arbitrary demand was enough. Need of premises for a given purpose is easy to understand, as is demand of the premises for that purpose though there be no need. But, as the four cases demonstrate, when the word 'require' is coupled with 'reasonably' the arbitrary demand is excluded anyway: some element of reason or legitimacy must support any attempt to 'require'. That is all that those four cases relevantly decided.

Here the context is altogether different. The opinion relevant under s 50(4) is that 'the public interest requires that access ... be given'. Nothing is being 'required' for application to some given purpose, as it was in Kiely. What is more significant for present purposes is that in the construction of s 50(4) the respondent opts for the alternative of 'needs' over 'demands'; yet, I should have thought that in Kiely the need referred to was founded in necessity. What does it matter, then, whether in s 50(4) the word 'requires' means 'needs', in the sense of calls for as a matter of necessity, or 'demands', which after all has a similar connotation of necessitates (though perhaps it is little less emphatic in that regard)? The argument between the two seems to me a sterile one, in much the same way that the difference between 'needs and 'demands' would seem of no significance in construing the opening words of s5(1). ..... In Director of Public Prosecutions v Smith, the tribunal found that the public interest 'necessitated' disclosure, and the decision was confirmed on appeal. To my mind that test was wholly appropriate under s 50(4).

82 In the same vein, we are of the opinion that the test as to the word "requires" in s 36 of the Subdivision Act 1988 is as to whether the easement is necessary for the economical and efficient servicing of or access to the motel land. Further, as the operation of this section restricts the use that a fee simple owner could ordinarily make of its land, it should strictly be interpreted. The easement should only be granted if the motel owners show the case falls strictly within the section. We are mindful that it is a very serious matter to restrict an owner in the use of its land.

83 In this application, there was little difference in expert opinion that the appropriate parking for this motel was between 0.6 and 0.8 per car spaces for each guest unit and one car space for the manager's unit. However, it seemed to be basically agreed between all witnesses that an appropriate figure of car spaces per unit for this motel was 0.72 per guest unit and one car space for the manager's unit. Having found that the permit for the motel permits the owners to have 33 guest units and one manager's unit, the appropriate amount of car spaces available should be (using the 0.72 formula) 23.76 spaces which taken to the nearest whole number is 24 spaces plus one manager's unit totalling 25 spaces for the motel. However, there are only 17 spaces within the central area of the motel, with a possibility of two more spaces being created in the north-east corner.

84 Mr Cicero submitted on this basis, with limited on-street parking, that the easement was necessary for the motel to have efficient operation because, without the car spaces on the western boundary of the motel site being able to be entered by the Council reserve, those spaces could not be used.

85 He further stated that access to these car spaces on the motel land (western boundary) via the Council reserve was first granted in 1970 and has been utilised by the motel since the late 70s. He therefore concluded, in his submission on this point, that the car spaces were necessary for the economic and efficient use of the motel site.

86 Mr Appudurai, on behalf of the Council, submitted that the owners of the motel should first examine all other alternatives before the easement is granted. He suggested that the motel owners could have pursued the possibility of a car park under the motel accessed through the current Beach Street crossover to the main motel entrance or they could have applied for a waiver or reduction of the car space requirements on the basis that the area of the motel was well served by public transport.

87 In relation to the suggestion of car parking under the current motel building, there was indeed no proposal put forward by the current owners of the motel. However we notice that, in written notes from the MMBW in relation to a town planning application in November 1963, where it was proposed to have a 51 unit motel built, there was a proposal for "car parking below the building". It is also clear that the motel owners have not applied for any waiver or reduction of car parking requirements.

88 We have previously noted that to restrict the use by an owner of land, that it may be otherwise able to do, by the creation of an easement is a very serious matter indeed, and such a restriction should only occur upon the strictest interpretation of the section. In our view, if the requirement for the car parking spaces can be met by any reasonable or practical means, other than the creation of the easement, that means should be adopted. While the motel owners could not be expected to investigate every possible means, no matter how remote, it is not unreasonable to suggest, as Mr Appudurai did, that they should investigate the obvious alternatives of placing the car park underground with entrance from the central motel, or even a far less expensive alternative of having the car parking requirements waived or reduced. No such investigation was undertaken that we were told about, and no application for waiver or reduction of the car parking spaces was made. Bearing in mind that, when this hearing was before the Tribunal, a lot of expert evidence was called, it would have been relatively easy and inexpensive for the motel owners to make an application for the waiver or reduction of car parking spaces. However, for their own reasons which we were not told about, no such application was made.

89 It was accepted by all parties that the onus of showing the requirement was upon the motel owners. Short of making the proposal for the easement pursuant to s 36, no other alternatives seemed to have been investigated by them. Thus, we are not convinced that the easement is necessary or required for the servicing or access to the motel site, as there may be other viable alternatives which have not been investigated.

90 During the address stage of the hearing we pointed out to Mr Cicero that, in construing s 36, it was necessary for him to show that not only was the easement necessary for the "efficient" use of the land, but it was also necessary for the "economical" use of the land. We stated that the word "and" between the words "economical" and "efficient" needs to be given its proper meaning. We also pointed out to Mr Cicero that no evidence had been called in relation to the economic use of the motel with or without the easement. After considering his position over the lunch adjournment, Mr Cicero submitted that if the application was to fail because he had not proved that the easement was necessary for the "economical" use of the motel, we should indicate such in our decision and give the motel owners the opportunity to prove the economical factor after the decision. Mr Cicero was given the opportunity to apply to re-open the motel owners' case but declined to do so. We also note that Mr Cicero is an experienced advocate in the town planning field. The economical necessity for the motel could be proved by a conjunction of both the owners of the motel and their accountants giving evidence of the necessity of using or not using the motel units that are permitted to be used, but may have difficulty using as a result of lack of car parking. Put another way, would the motel be economically viable if only approximately 23 or 24 units could be used? If the answer is "yes", it would mean the car parking in the centre of the motel would be sufficient. No evidence was called in that regard whatsoever.

91 In our view, it is quite inappropriate when an advocate has not called particular evidence to make a decision and then give the opportunity for the further evidence to be called subsequent to the decision. While we are cognisant of the fact that procedural fairness must at all times be adopted (see s 98 of the Victorian Civil and Administrative Tribunal Act 1998), it is also important that proceedings be brought to a proper and timely conclusion. The motel owners had every opportunity to call the evidence in relation to the economical effect on the motel of car parking or lack thereof. Either, as a result of neglect or tactical reasons, they declined not to call such evidence. In our view they should not have the opportunity of calling such evidence after the final decision has been made, and we see no reason to delay the making of a final decision because of such a matter. In any event, having come to the conclusion which we have in relation to s 36 matters, the motel owners would fail in this application in any case.

92 Under those circumstances, the motel owners having failed to adduce any evidence whatsoever as to the economical effect on the motel of the lack of car parking spaces, we must find that they have failed to prove that for economical reasons the creation of the easement as "required" pursuant to s 36.

93 While the application pursuant to s 36 could be determined on the basis of what we have found above in relation to economical and efficient access, because it was argued, we believe that it is desirable to make findings on whether the acquisition of the easement would cause an "unreasonable loss of amenity in the area".

94 The motel owners, through a number of witnesses, called evidence that there would not be a loss of amenity in the area if the easement was created. Mr Dunbabin, a Civil Engineer, believed that a good works contractor would be able to avoid problems such as stormwater runoff, spillage and contamination in relation to the easement and it would not unduly affect sediment control, dust, noise or flora and fauna in the area. However, he did concede that there would be a higher risk of collision between pedestrians and vehicles, and an increased amount of maintenance work, if the easement was granted.

95 Mr Brett Lane concluded that the easement works would be "unlikely to impact on matters of flora and fauna conservation significance".

96 The Council called Henry Turnbull, Traffic Engineer. He stated :

The area of the Council reserve adjacent to the proposed car parking is intended to be used as part of a linear pathway for pedestrians and cyclists and as such will not be appropriate for mixing of motel parking and access movements. In particular, there is an expectation of increased use of the path once it is completed and additional interaction with pedestrian and cycle traffic coming across the Beach Street pedestrian bridge over Kananook Creek.

While it is reasonable to expect that most of the time, motorists would look out for and be aware of pedestrian and cyclists using the pathway and vice versa, during winter mornings and windows are frosted over, motorists' visibility may be compromised.

97 In cross-examination, Mr Turnbull did concede that he thought the risk of a vehicle pedestrian collision was not great.

98 Mr Travers, to whom we have already referred, made it clear that, in his view, the easement would have a detrimental effect on the planning arrangements which the Council has made for the future of the reserve.

99 Further, Ms Bawden, who appeared on behalf of the Kananook Creek Association Inc, was concerned that the banks of the Kananook Creek were a flood inundation area which she believed extended to the area where the easement was proposed. She said that the banks of the creek are low lying, and such an easement would have a detrimental effect on the whole area and the proposal which her organisation and a number of other residents groups have worked long and hard to obtain. She further noted that the corner of Beach Street and Kananook Esplanade to the south is a dangerous corner and having cars entering and leaving the proposed crossover to the easement would be extremely dangerous and hazardous.

100 While s 36 refers to "the area affected by the ... acquisition", in our view to define the area as simply the area which is to be used for the easement, as has been suggested by Mr Cicero, is far too restrictive. The word "area" as used in s 36 refers to "the area affected by the ... acquisition". Therefore, that not only encompasses the area to which the easement would be placed, but also encompasses the surrounding areas if those surrounding areas are affected by such acquisition. In this particular instance, there are proposals for a Bay Trail around a considerable area of Port Phillip Bay in the Frankston area and the neighbouring areas. While there is mixed pedestrian vehicular access to some of this trail in other areas, it is noted that this particular area, where it is proposed that the easement be created, is special in the sense that it is the gateway to the northern portion of the trail from the central business district of the City of Frankston. It is important that those that are using the area, in particular pedestrians and cyclists, use the area without fear of being struck by a motorcar.

101 While we accept the fact that, if both pedestrians and motorcar drivers are careful, there should not be any great problems in relation to pedestrians getting injured, we are also of the view that, in public reserves, people are not always mindful of the fact that a motorcar might be interfering with their access, and by the same token a motorist driving in or out of the parking spaces of the motel may not be aware that pedestrians or cyclists are using the path. Thus, in our view, there is a danger which will affect the amenity of the area.

102 Further the proposal put forward by Mr Travers to construct a shaded area plus BBQ facilities on part of the area where it is proposed that the easement should be created, would, in part, be thwarted by the creation of the easement. We find that such facilities as the shaded and BBQ areas would be extremely beneficial to the area and improve the amenity a great deal. However, by placing the easement in the area proposed, such proposals would be thwarted which would be an unreasonable loss of amenity to this area. In considering the question of amenity we not only consider the area as it presently exists, but the area in the way it is likely to exist in the near future. In our opinion, it is very likely that in the very near future the plan suggested by Mr Travers is likely to be adopted, and the area constructed accordingly.

103 Thus, in our view, the creation of this easement would be an unreasonable loss of amenity not only in the immediate area where it is proposed to create the easement, but in the adjacent areas of the Bay Trail. Thus, we conclude that the easement sought by the motel owners pursuant to s 36 of the Subdivision Act 1988 should be refused.

104 Mr Turnbull, who it will be remembered was called by the Council to give expert evidence, suggested that the motel owners could use their land on the western boundary of the site for four parallel car spaces. However this proposal would require a grant of an easement to provide a turning circle over the Council land on the reserve near the north-west corner of the site. Mr Cicero submitted that should his clients fail in their application, as put, pursuant to s 36, then the Tribunal should grant an easement in accordance with the plan prepared by Mr Turnbull. The difficulty with the submission made by Mr Cicero is that it was only put in the closing minutes of his final submission. While Mr Appudurai, on behalf of the Council, and Ms Bawden, on behalf of the Kananook Creek Association, had opportunities to put submissions in reply, such alternate proposal was not put to any other witnesses that were called in the proceedings to determine what their view may be on the matter. Further, no notice had been provided to the Council or other objectors that the motel owners would be putting this submission as an alternative proposal. Given the serious nature of restricting the use of land by an easement we are of the view that, if such a proposal is to be seriously made, it should be made after proper notice has been given to all the parties concerned. It does not follow that, because Mr Turnbull was called by the Council to give evidence, his proposal would be supported by the Council. While he was called by the Council to give expert evidence, we take it that he was giving expert evidence as to his own views and not to the views of the Council or any of the other objectors. Thus, we should not and will not accede to the request of Mr Cicero and adopt Mr Turnbull's proposal.

105 The Responsible Authority failed to grant a permit within the prescribed time for works associated with the existing car spaces at 9 Beach Street, which are the car spaces to the west of the motel in the area adjacent to the Council reserve. The Council would have refused to grant a permit, if an Application for Review of Failure had not been lodged, on the grounds set out at paragraph 17 and summarised by Mr Appudurai at paragraph 18.

106 We consider that a permit should not be granted. We consider, for reasons discussed with the respective to the s 36 application, that the proposal would be detrimental to the amenity of the area, and in particular the Kananook Creek Trail, and would therefore be contrary to the proper and orderly planning of the area and would prejudice the proper future planning of the area.

107 It was submitted by Mr Cicero, for the motel owners, that the application does not propose any works over the Council reserve and does not seek planning permission to use the Council reserve to access those car spaces. Our decision to dismiss the s 36 application does however mean that access to the car spaces would be denied and we consider that this is a factor that should lead us to direct that a permit must not be granted. We note and accept the submission of Mr Appudurai, for the Council, that the proposal cannot be implemented in the absence of access over the reserve.

108 We have relied, in considering the s 36 application, on the Statement of Evidence of Mr Travers, and his proposals for development on the land that is the subject of the s 36 application. Even if we did not accept the plan of Mr Travers and relied only on the EDAW Gillespies plan, we are of the view that to direct the grant of a permit for the proposed car spaces would impact on the amenity of the area, being the Kananook Creek Reserve proposal as set out in the EDAW Gillespies plan. We consider that this is another reason why a permit should not be granted.

109 We have therefore come to the conclusion that a permit for parking proposed should not be granted.

110 Thus, in conclusion, we will make a declaration that there is a permit for the site to contain 33 motel units plus a caretaker's unit, we will refuse the application of the motel owners pursuant to s 36, and we will also refuse their application for a review of the failure to grant a permit pursuant to s 79 of the Act.