Mr Michael Best, solicitor, of Professional Legal Group

1. The Echuca Workers and Services Club ("the Club") has applied for a permit to remove an easement over its land. The adjoining land owner, Grey Corp Properties has the benefit of this easement and objects to its removal.
2. The land owned by Grey Corp Properties has, until recently, been used as a service station and for boat sales. The easement abuts the southern boundary of the Grey Corp Properties land. In appearance it forms part of the hard stand area associated with the former uses of this land. There is a landscaping strip along the length of the easement where it abuts the wall of the Club premises on the Echuca Workers and Services Club land. Some temporary fencing has been erected around the former service station site, which demarcates it from the easement.
3. The easement runs at right angles to Annesley Street and at the rear has a connection to the council owned Nish Street car park. The council says that part of the land forming the Nish Street car park also has the benefit of the easement. As a person claiming to have the benefit of the easement, the council too objects to its removal.
4. The permit application is made pursuant to clause 52.02 of the Campaspe Planning Scheme to enable the club to proceed to remove an easement under section 23 of the Subdivision Act 1988. The council refused the permit application on the following grounds:
   1. The easement continues to be required by a landowner who benefits from the easement.
   2. The proposal if approved would adversely affect the further orderly development of the service station site.
   3. The proposal does not provide for the fair and orderly use and development of land.
5. The Club relies upon the following statement of grounds:

The easement is not required by any authority nor is it required by the owner who has the benefit.

The easement has not been used for the purposes for which it was created.

The owner who has the benefit is prohibited from using its land at all.

The land subject to the easement is wanted for re-development purposes for the owner.

1. I have concluded that the easement should not be removed. In doing so, I have considered the following key issues:
   • Has the correct procedure been used?
   • What are relevant decision guidelines?
   • Having regard to relevant guidelines, should the easement be removed?

1. Tracing the lineage of this easement is complicated due to various plans of consolidation affecting both the dominant and servient tenements[1].
2. The easement was created by Plan of Subdivision LP78230[2]. This was a three lot plan of subdivision, which included:
   • Lot 1 LP78230 now part of the land owned by Grey Corp Properties.
   • Lot 2 LP78230 now part of the land owned by Echuca Workers & Services Club. Lot 2 has an easement along its northern boundary abutting Lot 1. This land is noted as being "appropriated or set apart as a drainage, sewerage and carriageway easement". Lot 2 also included the land coloured brown shown as a road on the plan of subdivision[3]. This land was subsequently excised from Lot 2[4]. The road was transferred to and is now owned by the council. It forms part of the Nish Street car park.
   • Lot 3 LP78230 now part of the land comprising the Nish Street car park and owned by the council. Lot 3 was 'landlocked' and depended upon the road referred to above forming part of Lot 2, which was appropriated or set apart for easement of way on the plan of subdivison, and the easement over Lot 2 in order to gain access to Annesley Street.
3. Lot 2 on LP78230 has since been consolidated with other land owned by the club and now forms part of Certificate of Title Volume 11078 Folio 588. It comprises the land in plan of consolidation 369183T. The easement continues to be shown along the northern boundary of this land. Information about this easement on the plan of consolidation indicates that its purpose is sewerage, drainage and carriageway; it has a width of 3.35 metres; its origin was LP78230; and the land benefited is Lot 1 LP78230.

1. I find that the easement is on land owned by the Echuca Workers & Services Club. The land is encumbered by an easement for sewerage, drainage and carriageway.

1. I find that the land owned by Grey Corp Properties has the benefit of the easement.
2. I make no finding about whether land owned by the council has the benefit of the easement. It appears clear that when the plan of subdivision was created, Lot 3 LP78230 had the benefit of the easement. This benefit has not been noted on plan of consolidation PC369183T. This may well be an error in the plan of consolidation made by the surveyor and not identified by the council when it certified the plan. It is a matter that the council needs to pursue independently of this proceeding. I do not need to make a specific finding on this issue in order to determine the current application for review.
3. I note that the easement provides a physical link between the Nish Street car park and Annesley Street.

1. It was evident from some submissions made at the hearing that the distinction between the procedures to remove an easement offered by sections 23 and 36 of the Subdivision Act 1988 are not fully appreciated nor the way in which they link with the Planning and Environment Act 1987 and planning schemes.
2. In Ogrodnik v Shire of Wellington[5] I outlined in detail the planning and procedural requirements to create (in that case), vary or remove an easement or restriction. This case was decided before the introduction of planning schemes based on the Victoria Planning Provisions. There have consequently been changes to the planning scheme controls. Thus the policy context for considering the removal or variation of easements and restrictions is now set out in clause 19.01-2 of the State Planning Policy Framework (SPPF) which provides:

• The removal or variation of easements and restrictions to enable use or development that complies with planning schemes after the interests of affected people are considered.

1. Clause 52.02 now sets out the planning controls applying to easements, restrictions and reserves. It provides as follows:

• Under Section 23 of the Subdivision Act 1988 to create, vary or remove an easement or restriction or vary or remove a condition in the nature of an easement in a Crown grant.
• Under Section 24A of the Subdivision Act 1988.
• Under Section 36 of the Subdivision Act 1988 to acquire or remove an easement or remove a right of way.

• If the action is required or authorised by the schedule to this clause.
• In the circumstances set out in Section 6A(3) of the Planning and Environment Act 1987.
• If the person proceeds under Section 362A of the Land Act 1958.
• In the case of a person proceeding under Section 36 of the Subdivision Act 1988, if the council or a referral authority gives a written statement in accordance with Section 36(1)(a) or (b) of that Act.

In this clause, restriction has the same meaning as in the Subdivision Act 1988.

Note: Section 23 of the Subdivision Act 1988 provides that either the council or the person benefiting from the direction must lodge a certified plan at the Titles Office for registration.

1. In the present case, the Club has applied for a permit to remove an easement over land that it owns. It seeks to remove a benefit enjoyed by other land without the consent of the owner of the other land. It is the owner of the land burdened by the easement within the meaning of section 23(1) of the Subdivision Act 1988. However, by applying for a permit to remove the easement of carriageway over its land, the Club may fall within the ambit of section 36(1)(d) of the Subdivision Act 1988[6]. If this is the case, then the Tribunal must give leave to the owner to remove the right of way compulsorily.
2. The procedures associated with an application under section 36 of the Subdivision Act 1988 are complex.[7] A statement is required by the council that it considers that the economical and efficient servicing of, or access to, land covered by the permit application requires the removal or acquisition of the right of way or easement and that the removal or acquisition will not result in an unreasonable loss of amenity in the area affected by the removal or acquisition[8]. If a section 36 statement is made, the owner may apply to the Tribunal for leave to remove the right of way.
3. It was submitted by Mr Best, on behalf of Grey Corp Properties, that the council must make a section 36 statement before granting a permit. Mr Best submitted that the permit application was totally misconceived. The council could never grant a permit that would allow the easement to be extinguished. All that it could do under section 36 was to state its view. Then, and subject to the provisions of section 36, the Club would be able to take the next step, which was to apply to the Tribunal for leave to remove the right of way. An application under section 23 of the Subdivision Act 1988 could not proceed in the circumstances of the present case where the beneficiary of the easement of carriageway refused to consent to its removal. Mr Best referred to section 6 of the Subdivision Act 1988, which relates to the certification of plans. Section 6(1) provides that the council must certify the plan within the prescribed time if, where a plan removes or varies the whole or part of an easement, the removal or variation is in accordance with a permit[9]; or all parties interested in the easement have agreed to the removal or variation[10]; or the Tribunal has given leave under section 36 to remove the easement and, if leave is given subject to conditions relating to the plan, those conditions have been met[11]. If the conditions in subsection (1) are not met, the council must refuse to certify the plan.[12].
4. In my view, Mr Best is confusing the need for planning approval under the Planning and Environment Act 1987 with the procedures set out under the Subdivision Act 1988 for actually acquiring or removing the easement or registering it on title. Whether section 23 or section 36 of the Subdivision Act 1988 is the most appropriate course of action, clause 52.02 of the planning scheme requires a permit before a person proceeds under either of these sections. The only case in which a permit is not required is if the council gives a written statement in accordance with section 36(1)(a) or (b) of the Subdivision Act 1988. It is common ground that there has been no section 36 statement made by the council and none of the other exemptions apply. Therefore I find that a permit is required under clause 52.02 of the planning scheme that this should be determined on its merits irrespective of the procedures under the Subdivision Act 1988.
5. In the present case, it is proposed is to remove an easement of carriageway. I note that section 36(1) of the Subdivision Act 1988 draws a distinction between removing a right of way over the owner's land - section 36(1)(d) - and acquiring or removing an easement over other land - section 36(1)(e). The only place where a distinction is made between a removing right of way and an easement (of carriageway) is in section 36. In my view, a right of way in this context includes an easement of carriageway. However, no arguments were put to me about whether there was any significance in this distinction. I make no finding on the point because I do not consider I need to determine whether the correct procedure under the Subdivision Act 1998 is section 23 or section 36 for the purpose of deciding this case. I only need to decide whether a planning permit should be granted.
6. As a permit is required to remove this easement, I am satisfied that the correct procedure has been followed by the Club in making an application under clause 52.02 for a permit to remove the easement. The council has refused to grant a permit and the Club has lodged an application for review under section 77 of the Planning and Environment Act 1987. In these circumstances, I find that I have jurisdiction to consider this application.

1. There are no decision guidelines included in clause 52.02. Clause 65.01 provides that before deciding on an application, the responsible authority (and the Tribunal) must consider, as appropriate various matters, including:
   • The matters set out in Section 60 of the Act.
   • The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
   • The orderly planning of the area.
   • The effect on the amenity of the area.
2. Under section 60(1) of the Act all objections and other submissions must be considered. The policy set out in clause 19.01-2 must also be considered, namely that the interests of affected people are considered when removing an easement to enable use or development that complies with the planning scheme. These are the only decision guidelines provided within the framework of the planning scheme itself.
3. In the case of K J Barge and Associates v Prahran City Council & Anor[13], the Administrative Appeals Tribunal said that whether or not it would grant a permit for the removal or variation of an easement should be determined by looking at the following questions:

(i) Does the current use of or the current state or condition of the dominant and servient lands (tenements) indicate a need or requirement for the continued existence of the easement; and

(ii) Would the owners of the dominant land suffer any material detriment in the use and enjoyment of that land if the easement were removed or varied?

If the answer to either of these questions is in the affirmative then the Tribunal should not grant the Permit.

1. In Jordan & McMahon v Stonnington CC[14], Senior Member Byard summarised those two propositions as "need and detriment". He endorsed them as tests but noted that they were not exhaustive. Even if the Barge questions indicate refusal, they may be outweighed by considerations indicating the grant of a permit. However, he also said:

[79] ... I do not think it is appropriate to lightly extinguish or modify an existing property right, or indeed any existing legal right. There needs to be a good reason for doing so. ...

1. It has been suggested that some guidance might also be derived from the sorts of matters set out in sections 60(5) and 60(2) of the Planning and Environment Act 1987, which are relevant in determining whether to remove or vary a restriction.[15]. These sections refer to matters such as financial loss, loss of amenity, loss arising from change to the character of the neighbourhood, and a material detriment likely to occur to beneficiaries if a restrictive covenant is varied or removed. However, in my view, it is unnecessarily confusing to refer to these particular provisions of the Act. If such matters are at all relevant, I consider they are embodied in the general tests set out in Barge.
2. I consider that the Barge tests provide the best general guidance, together with the policy set out in clause 19.01-2 to consider the interests of affected people.

1. It seems that the easement was at one stage leased by the Club to previous owners of the Grey Corp Properties land to use for car parking in association with use of the land for boat sales. I do not consider that this tenancy or use of land for car parking is relevant. The tenancy has been terminated and the use for car parking has ceased. The use of the easement for car parking has nothing to do with the use of the easement for carriageway.
2. I do not consider the gate over the easement is relevant. It is not a permanent bar to access and the fact that the easement may to be used at the moment for carriageway purposes does not mean that it has not been so used in the past and will not be so used in the future.
3. I accept that in the current state of hiatus of the Grey Corp Properties land, the easement is not being used for carriageway. However, I accept that it has been used for this purpose in the past and is likely to be so used in the future. Grey Corp Properties is proposing to redevelop its land for retail purposes.[16] The easement provides a valuable means of access to the Grey Corp Properties land from Annesley Street and the Nish Street car park. This means of access will become more important if the land is redeveloped.
4. I consider that the interests of orderly planning require this means of access to be retained to the Grey Corp Properties land and between Annesley Street and the Nish Street car park. I find there is a continued need and requirement for this easement.

1. In my view, the owner of the dominant tenement, Grey Corp Properties, would suffer material detriment in the use and enjoyment of its land if the easement was removed. It will remove the flexibility to access the dominant land from any point along the easement in the event that the land is redeveloped. The option to exit the land to either Annesley Street or Nish Street car park would be lost. I find that the easement represents a material benefit to the Grey Corp Properties land and this land would suffer a material detriment if use and enjoyment of the easement was removed.

1. The Club intends to redevelop its own land. It wants to incorporate the easement into that redevelopment.
2. In my view, there is no reason why the Club may not use the easement itself for purposes of access associated with its redevelopment plans. I reject the proposition that the owner is prohibited from using its land at all. However, it can only use the land in a way that does not restrict its use for the purposes shown on the Certificate of Title. I do not consider that the Club's desire to use the easement land exclusively in its redevelopment outweighs the loss of benefit to Grey Corp Properties.

1. In my view, the orderly development of both the dominant and servient tenements supports the retention of this easement to provide access to the Grey Corp Properties land from either Annesley Street or the Nish Street car park, and also to facilitate access to the Club land, if the Club so desires. I see no need to remove the easement to facilitate redevelopment of the Club land, which is a substantial holding. Any removal of the easement would be a material detriment to the benefiting land.
2. Assuming that the council still has the benefit of the easement, I also find that it would suffer material detriment in the use and enjoyment of its land forming part of the Nish Street car park if access to the car park via the carriageway easement was removed.
3. For all these reasons, I find that a permit should not be granted to remove the easement.

[1] The dominant tenement is the land having the benefit of the easement; in this case, the land owned by Grey Corp Properties. The servient tenement is the land that is encumbered by the easement; in this case, the Echuca Workers & Services Club land.

[3] See Certificate of Title Volume 9361 Folio 878

[4] Lot 1 TP4758D transferred 20 March 1995, see Volume 10252 Folio 623

[5] 17 AATR 41

[6] Section 36 of the Subdivision Act 1988 provides as follows:

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

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

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

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

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

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

[7] See JT Snipe Investments Pty Ltd v Hume CC (Red Dot) [2007] VCAT 1831

[8] As the Tribunal in JT Snipe Investments Pty Ltd v Hume CC [2007] VCAT 1831 at [14A] notes, the council must make the section 36 statement. However, given the right of review in section 40(2) of the Subdivision Act 1988, if the council refuses to make the statement, the Tribunal on review can itself make the statement or direct the council to make the statement.

[9] Section 6(1)(k)(i) Subdivision Act 1988

[10] Section 6(1)(k)(iv) Subdivision Act 1988

[11] Section 6(1)(k)(v) Subdivision Act 1988

[12] Section 6(2)

[13] (1992) 10 AATR 345

[14] [2004] VCAT 2008 at [41] - [81]

[15] See Focused Vision Pty Ltd v Nillumbik SC [2003] VCAT 1393 and Rathmines Investments Pty Ltd v Manningham CC [2007] VCAT 1435