Within 14 days of this day the parties must bring in short minutes to give effect to the attached reasons.

For Mark William Forbes, Judith Elizabeth Forbes, Emilio Lombardi and Bernardino Lombardi

1. The Tribunal has before it two proceedings, one matter in the Planning and Environment List and the other in the Real Property List.
2. In the Planning and Environment List matter, No. P3237/2009 the applicant, Mr Curry seeks an order pursuant to Section 79 of the Planning and Environment Act 1987 granting him relief against a failure by the Responsible Authority, Casey City Council to determine an application for amendment to a planning permit, namely Planning Permit P901/04/A.
3. In the other proceeding, Proceeding W139/2009, Mr Curry seeks leave pursuant to Section 36 of the Subdivision Act 1988 to acquire an easement over three neighbouring properties to enable sewerage connections to be made to land which he is developing pursuant to the relevant planning permit.
4. The land in question is at 12S Peak Drive, Harkaway. It falls into some two areas which are separated by what might be described as a watershed. The larger area which in accordance with the planning permit is to be subdivided into some 20 allotments has a relatively steep fall to the west. The smaller area on the other side of the watershed and to the south has a fall to the south and is, in accordance with the planning permit, to be subdivided into eight allotments. According to Condition 11 of the permit granted by respondent, Casey City Council as Responsible Authority under the Casey Planning Scheme to enable subdivision and removal of easement on the relevant property Mr Curry is required to provide:

Reticulated water supply, drainage, sewerage facilities and underground electricity, gas and telecommunication services and fibre optic conduits must be provided to each lot shown on the endorsed plan.

1. Mr Curry proposes to achieve this result by acquiring an easement over three neighbouring properties. The properties are owned respectively by Casey City Council, being 7.64 hectare reserve for municipal purposes, the Messrs Lombardi who are the owners of a property at 309-313 Hassell Road consisting of 3.964 hectares and finally over land owned by Mr and Mrs Forbes which contains some 7.241 hectares which is also to be found in Hassell Road. Mr Curry's land is within the Urban Growth Boundary but the other parcels of land are not. The Council has consented to the creation of the easement and so nothing further needs be said with respect to the municipal reserve land, however the Lombardis and the Forbes are opposed to the application which has been made.
2. Each of their parcels of land are the subject of a number of overlays. They are also subject to a number of registered easements in favour of power companies for transmission lines. In the case of Mr Forbes' land it is also subject to what would in State law be an easement but what has been created pursuant to Federal statute for telecommunications carriers Telstra Limited and Optus where cables of one sort or another are buried. These rights if they may be properly so described, do not appear on the face of the relevant certificate of title.
3. In the case of the Forbes' land the registered easements already affect some 30% of the area in question. The effect of the zoning these parcels as Green Wedge is amongst other things in accordance with the terms of the Casey Planning Scheme to prohibit their further subdivision. It also provides a drastic limit on the use to which each parcel of land may be put. The Lombardis' land is vacant. The Forbes' land contains an historic homestead which is the subject of an heritage overlay and is the residence for the Forbes. The Lombardis have let their property for animal adgistment. The current lease which was apparently not in writing expires on 28 December. Each property has certain dams on it.
4. The application is made as previously noted pursuant to Section 36 of the Subdivision Act 1988. That section provides inter alia as follows:

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

and that the removal or acquisition will not result in an unreasonable loss of amenity in the area affected by the removal or 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.

(1A) The Tribunal may give leave subject to any conditions it thinks fit.

1. Other subsections provide that if leave is granted then any question of compensation to the party the subject of the compulsory acquisition is to be dealt with under the Land Acquisition and Compensation Act 1986 as if the acquiring party were an Authority within the meaning of that Act.
2. In this case the first requirement of Section 36(1), namely that the statement as to the economical and efficient subdivision of land has been made. The statement was made by South East Water Limited which it is accepted is a referral authority for the purposes of the relevant permit and that statement was made in the course of the application for the amendment to the permit which is the subject matter of proceeding P3237/2009. The question then becomes whether the other requirements in Section 36(1) have been made out and, if they have been made out, whether it is otherwise appropriate to grant the relief which Mr Curry seeks. The easement which Mr Curry seeks to acquire as originally delineated so far as the Lombardis' property is concerned follows the areas affected by existing easements but extends some 2m beyond the edge of the affected area.
3. Mr Cicero, solicitor for Mr Curry has advised us in the course of the hearing that his client is willing to move the alignment of the proposed easement so that it is coincident with the easements existing over the Lombardi property. In the case of the Forbes' property, whilst this process may be followed to some extent there is an area according to Mr Soding, a planning consultant who gave evidence for Mr Curry, of some 628 sq m which would be affected by this proposed easement and which is not affected by any existing easement, that is an additional area of land which would be encumbered as far as the Forbes are concerned.
4. The principal argument which has been put against the success of this application on behalf of the two landowners who are represented today and yesterday by Mr Lombardi of Counsel, is that first, it is not demonstrated that the easement as proposed is the economical and efficient solution for the subdivision and secondly, that in any event there would be an unreasonable loss of amenity in the area affected were the easement to be created.
5. Mr Lombardi relied on the evidence of civil engineer and planning consultant Mr Fairbairn.
6. Turning first to the issue of unreasonable loss of amenity, Mr Lombardi urged some three considerations. First, he noted that upon the evidence in the Forbes' property for instance, there would be three or perhaps five pits or inspection holes on the alignment of the proposed sewerage easement. The Forbes use their property to enable them to engage in equestrian interests. Mr and Mrs Forbes' daughter is a member of the Victorian Equestrian team. They keep horses on their property. The Forbes are concerned that their horses may slip on the lids of the pits. Secondly, they apprehend that particularly after rain the edges of the pit lids may be caused to stand proud creating a tripping hazard for the horses. Thirdly, since the land needs to be slashed for fuel reduction purposes from time to time, a proud standing lid would create a hazard for someone carrying out slashing. Fourthly, they would be generally restricted in their equestrian use of the land. Fifthly, there would be prejudice to existing and proposed dams. Sixthly there is a risk of spillage or contamination of a creek bed which runs through the Forbes' property. Seventhly, there is a risk of pollution of the dams. Eighthly they say there is a general principle that a sewer ought not run under a watercourse and the gully or creek bed area is to be at least in part the line which the proposed sewerage easement would follow and finally, given that the Forbes' property is already 30% encumbered to impose a further easement upon their property would for that reason alone be an imposition and an unreasonable imposition which would by its very nature constitute an unreasonable loss of amenity.
7. An initial question is to what extent is the Tribunal entitled to enquire into these matters. One reading of the section is that once the referral authority has expressed the view which it has expressed, in the course of consideration of the permit amendment, these matters are conclusively determined in favour of Mr Curry and there is nothing in the section which appears to authorise or require the Tribunal to carry out a review of these matters.
8. Mr Lombardi and Mr Appudurai who appeared on behalf of South East Water Limited, submitted that this was an inappropriate construction of the section. Both observed that if the ipse dixit of the referral authority were sufficient in itself, the statute could so provide. Referring the matter to the Tribunal implied that there was something to be adjudicated upon. Secondly, they both referred to what has been described as the principle of legality, that is, that in construing statutes one approaches them with the presumption that it is unlikely that Parliament expected any fundamental rights to be overridden without due process. This has been a part of Australian law since at least 1908 in the High Court decision of Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 and there are earlier examples of it also in Anglo Australian law. We might add that the right to property and the right of integrity for one's home are amongst the rights protected by the Charter of Human Rights and Responsibilities Act Section 20 and the resisting respondents in this proceeding under the Subdivision Act are natural persons who enjoy human rights.
9. We accept the submissions therefore that the Tribunal's role in a proceeding such as this goes beyond merely rubber stamping the determination of the referral authority.
10. We turn then to the question as to whether the various amenity issues raised by Mr Lombardi should be determined against Mr Curry and in favour of those respondents who oppose the creation of the easement.
11. Mr Soding said that in his experience the pit lids in question here are to be found throughout Victoria and throughout Metropolitan Melbourne and that they have not been found to create particular difficulties. He said and we did not understand the evidence of Mr Cowie, an officer of South East Water Limited who gave evidence today was to the same effect, that the requirements for construction by South East Water, the relevant sewerage authority is that these lids should be constructed flush and not proud.
12. Mr Breese, a civil engineer who is the designer of the system which it is proposed to put into effect said that he had experience with thoroughbred horses and owned some and that the horses were perfectly able to negotiate obstacles such as water troughs and the like so therefore there would be no problem with their negotiating pit lids which are prima facie to be held flush rather than proud.
13. Mr Soding said that his experience working in Local Government had him involved in the slashing of roadside reserves which frequently have such pit lids in them and in his experience slasher apparatus were invariably able to avoid having any difficulties. The apparatus was customarily able to pass over the pit lid without any damage.
14. All of that evidence leads us to conclude that the apprehensions about horses tripping or slipping on pit lids or slashers crashing into them are exaggerated and as a matter of practical reality unjustified.
15. Given that these pit lids will not need to be fenced off horses will continue to be able to graze over them and move through the area where they are to be found and we are not persuaded that the equestrian activities that the Forbes pursue and wish to continue to pursue, will be prevented nor we should add would the viticultural pursuits that Mr Forbes thinks he may follow in the future be prejudiced either. On issues of contamination the evidence of Mr Curry which accords with our own experience is that relatively small sewerage lines such as this can be buried and forgotten and do not require extensive maintenance. The fall given the topography of this area will be relatively significant and hence there is no reason to suppose that there will be a blockage. Moreover if there were a blockage given that the sewer will be relatively deep before any contamination on the surface of the land would take place, the relevant pit would have to be filled to the top.
16. Accordingly, we do not accept that there is a significant risk of contamination by spillage. The only particular apprehension that Mr Fairbairn had was that other authorities such as the telecommunication companies digging in the area might break the sewerage lines. Of course this is a hazard that exists wherever these utility cables and pipes are laid. It cannot be said that these things do not happen occasionally; but they are mercifully very rare events. We accept the submission put by Mr Cicero that these relatively rare events ought not to dictate the outcome in a situation such as the present. Put another way we are not persuaded that the relatively small risk of such a thing happening constitutes an unreasonable loss of amenity.
17. Mr Breese gave evidence that with appropriately attached lids any concerns as to the sewer being under the watercourse constituted by the gully on the Forbes' property could be accommodated. As far as dams are concerned we were told it would be possible to construct the sewerage lines where dams now exist given that the proposal is that they be relatively deep by boring. We believe that if leave is granted it could be made subject to a condition that the boring technology be used where any sewerage lines would go underneath any existing dam and that the imposition of such a condition would be authorised by Section 36(1)(a) of the Subdivision Act.
18. The evidence has been that the area on the Forbes' land affected by the proposed easement and not already affected by other easements is 628 sq m only 0.08 of the total area. Again, that additional affected area means that there is no unreasonable loss of amenity in that respect. We note also that the existence of a number of overlays affecting these two properties and the Green Wedge zoning means that these easements, if created, would not deprive these lands of significant potential for development. Nothing is set in concrete in planning, however what we have said represents a reasonable apprehension of what the situation is now and for the foreseeable future. Indeed there is much to be said for the argument put by Mr Cicero that the existence of these sewerage lines if the easements were created and leave were granted for it to be acquired would be a plus for the subject land and make it a better prospect for development should the Urban Growth Boundary move and the Green Wedge restrictions be relaxed.
19. In the circumstances therefore we are not persuaded that there is any unreasonable loss of amenity inherent in the easement which it is proposed to acquire or to put it another way (lest it be suggested that we have placed the burden of proof wrongly) we are affirmatively satisfied on Mr Curry's case that there will be no unreasonable loss of amenity in the area affected.
20. This then brings us to what is perhaps the more difficult issue, namely whether this proposed easement is to be regarded in terms of Section 36(1) as economical and efficient. The parties have argued this case on the basis that the phrase 'economical and efficient' directs attention to the easement. There might be something to be said for the view that this phrase is in fact directed to the proposed subdivision which is the word that in the text of the section appears immediately after it. So that the creation of an easement which would allow for a larger number of allotments in a particular subdivision might make for an 'efficient' subdivision; however given that the way that the parties have argued this matter assumes that whether the words 'economical and efficient' apply to the subdivision, they also apply to the proposed easement as criteria to be considered, we will deal with the matter on this basis.
21. The Lombardis and Mr Forbes have relied on the evidence of their consultant civil engineer, Mr Fairbairn, to the effect that there are other options for the economical and efficient sealing of the subject land and that these are the preferable ones rather than the easement which has been proposed.
22. Mr Curry's proposal is that a sewerage line run approximately westward from his subdivision across the land which we have described to a street called Brighton Retreat. From the larger area containing the 20 allotments with the westward fall, the feed to this line would be entirely gravity. There would be a low pressure pumping arrangement from the other area on the other side of the water shed whose slope is to the south. This according to Mr Breese the designer of the system and South East Water through its witness, Mr Cowie is the economical and efficient solution to the sewering of this land. According to Mr Fairbairn however, the economical and efficient solution is to be found by following a path to the southward through land owned by a company called Kameel Pty Ltd and, we are told by Mr Cicero, through some seven other privately held allotments to a street known as Casserta Drive.
23. Mr Fairbairn has postulated a number of options which have a mixture of rising mains, that is high pressure pumping or low pressure pumping. He has observed that low pressure pumping which will require a tank and separate pump for each of eight allotments in the southern area of the subdivision is to be included in the preferred option for South East Water and Mr Curry's expert Mr Breese. Mr Fairbairn says that the southward running sewer is a more appropriate solution. First, so far as those for whom he gives evidence are concerned, they are relieved of the burden of further easement; but also he says there is the potential to provide sewerage in Casserta Drive, an area which in accordance with the guidelines adopted by South East Water Limited have so far been served only by septic tank systems and relatively recently constructed septic tank systems. This says Mr Fairbairn is a more holistic approach. He conceded in cross-examination that viewed from (as he saw it), the narrow perspective of considering the sewering only of the Curry subdivision, the option favoured by South East Water Limited and Mr Breese' running to the west is the preferable one. The more holistic approach he said favoured Casserta Drive.
24. Mr Cicero and Mr Appudurai on behalf respectively of Mr Curry and South East Water Limited submitted that their preferred option clearly was the more economical and efficient. They said it was beyond question that gravity which provided the largest part of their proposal was the cheapest and the most efficient way of providing a sewerage system.
25. Mr Cowie, South East Water's witness, said that where pump arrangements were involved there was an ongoing requirement for maintenance and supervision. South East Water Limited's rule of thumb was that such cost was $200.00 per year per property, therefore said Mr Appudurai and Mr Cicero aside from the proposed Curry easement being generally cheaper in capital terms in the long term when one allowed for maintenance costs into the future it clearly was the more economical and efficient. There are difficulties for us in considering arguments such as these where effectively we are invited to express a view on options. If on these grounds we are to say as far as the Lombardis and the Forbes are concerned, 'not in your backyard, application dismissed', it might be thought to imply that we are saying to Kameel and other land owners to the south that it will be in your backyard. Clearly without hearing any of those persons we could not make any determination affecting their rights. Mr Curry would be sent back to square one and he would potentially have to make the same sort of case with respect to those landholders as he has made with respect to these landholders in these proceedings. Conceivably the matters urged by the other landholders, if they continued to oppose the grant of easements over their land as Kameel Pty Ltd apparently already has, might persuade what ever Tribunal hears that application to deny that application as well. The result would be a fairly unedifying one with the legal and planning systems potentially held up to ridicule. Be that as it may the submission is that our job here is simply to consider the merits of what has been put before us leaving any determination that might be made with respect to any proposal and any future proceeding is to be dealt with in the future by whoever is appointed so to do. We accept that as what should guide us. We merely draw attention to the potential difficulties that may arise.
26. In our view the contention that gravity is the most economical and efficient mode of providing sewerage is difficult to resist. We accept it and clearly the Curry proposal is predominately a gravity proposal whereas all of the various options provided by Mr Fairbairn entailing drainage to the south to Casserta Drive include a larger element of either rising main or low pressure pumping. The guidelines for South East Water are against having pressurised sewerage lines on private property in any circumstances where it can be avoided. The rationale for this is because having these pipes under pressure creates a greater risk of spillage and a more serious spillage than is inherent in a gravity driven system. Moreover we note that the township of Harkaway which is to the north of this subdivision whilst not on the 10 year horizon for sewerage, does have a proposed master plan. That master plan entails sewerage to generally the same area as the proposed Curry easement to the same point in Brighton Retreat. In those circumstances we believe that the proposed Curry easement is the economical and efficient one and that it does not merit the criticism made of it by Mr Fairbairn that it fails to take a holistic approach of the area. In fact it appears to be consonant with what is envisaged for the Harkaway township by South East Water Limited.
27. In those circumstances we believe that the application under Section 36(1) should be granted and that it should be granted subject to the condition which we indicated earlier with respect to boring to avoid disruption to any existing dams.
28. This brings us finally to the issues which arise in the proceeding in the Planning and Environment Act with respect to the proposals to amend the relevant permit so as to include provision for the acquisition of the easement. Given that Council as the Responsible Authority has not only not opposed the lacking of that amendment but now supports it, we believe likewise that that amendment should be made.
29. The amendments in question are:

(1) A change to what the permit allows being subdivision and removal of easement in accordance with plans submitted under Condition 1. The creation of an easement for sewerage purposes across land described as 309 Hessell Road, Harkaway, being Title Volume 10733 Folio 476 and 315 Hessell Road, Harkaway, Title Volume 10713 Folio 798.

(2) The insertion of a new condition to the permit being Condition 26.

1. The referral authority considers that the economic and efficient servicing of the land requires the holder of the Planning Permit P901/04 authorising the subdivision of Lot 2 PS 444550L being 12S Peak Drive, Harkaway to acquire easements for sewerage purposes over that part of 299 and 309 and 315 Hessell Road, Harkaway and that acquisition will not result in the unreasonable loss of amenity in the area affected by the acquisition.

Council proposed a further amendment to the permit relative to native vegetation which no party opposed and so the following additional condition will be inserted following Condition 7:

7A Prior to the commencement of any works associated with the easement to be created on land at 299-307 Hessell Road Harkaway, 309-312 Hessell Road Harkaway and 315 Hessell Road Harkaway, the applicant must submit engineering plans to the Responsible Authority which demonstrate that the works will not result in the loss of any native vegetation.

1. In the circumstances we propose inviting the parties, principally of course the representative for the applicant to submit forms of order to give effect to these reasons.