M.F. Macnamara, Deputy President (27 May and 23 June)

[2003] VCAT 1393

Mr Ruta of Counsel, instructed by Lawlor and Loy Pty Ltd, Surveyors.

Mr P. Barton of Counsel, instructed by Patricia Carroll, Solicitor

1. This proceeding concerns a bitter neighbourhood dispute between the owners of Nos. 148 and 150 Hildebrand Road, Cottles Bridge, picturesque hilly country to the north-east of Melbourne, a perplexing set of provisions in the Planning and Environment Act 1987 and a brawl between the two neighbours which led to the grant of an apprehended violence order against one of them.

2. In the early 1980s Lawlor and Loy Pty Ltd, a firm of surveyors was instructed in connection with the subdivision of some 64ha of land in Hildebrand Road, Cottles Bridge, by the owner Mr Bruce Newport. According to Mr Loy who is now the principal of the firm, the subdivision was effected by a series of two lot subdivisions, to minimise Council levies on the subdivision. The second stage of subdivision was effected pursuant to Permit No. 3637 issued by the Shire of Eltham as Responsible Authority for the North Riding Planning Scheme Interim Development Order. Condition No. 3 of that permit stated, inter alia that part of the land should be:

"Encumbered by a reasonable way for the purpose of provision of emergency bushfire access or escape route. Any fence erected across such easement should be provided with an opening or unlocked gate to the satisfaction of the Responsible Authority. The existing track within such easement shall be maintained to the satisfaction of the Responsible Authority."

3. What was described as the "existing track" ran approximately from Hildebrand Road in the north to the south-eastern edge of the subdivision, along the top of a ridgeline with the land falling away sharply for most of its length on both sides.

4. One of the subdivisions which flowed from the permit already referred to was Lodged Plan No. 143551 which was approved on the 8th of August 1983 and registered under the Transfer of Land Act. This plan depicted an easement following the alignment of the old track along the ridgeline coloured brown and described as a "carriageway" easement. To the south-west of the track was an allotment designated "B" consisting of 43.93ha. To the north-east was an allotment designated Lot 2 consisting of some 12.79ha. The south-eastern portion of the carriageway easement was located on the south-western edge of Lot 2, adjacent to the boundary of Lot B. About half-way along its course the easement crossed to the north-eastern boundary of Lot B and followed that alignment to Hildebrand Road on the north-west. This easement was established, it will be recalled, by reason of a requirement in the relevant planning permit. The fire access which the permit required was not for the advantage of the land comprised in the subdivision, rather, it was for the benefit of land to the south-east with a frontage to Watts Lane. Mr Loy, the surveyor involved in this and the subsequent subdivisions and also as it turns out, the person instructing Counsel on behalf of the present applicant, said that the creation of an easement of way in favour of the land fronting Watts Lane would have been costly and difficult. It would have required the registration under the Transfer of Land Act 1958 of a creation of easement in favour of the various Watts Lane parcels to be benefited. He said he understood that this land was subject to a cluster subdivision and it would have been necessary to deal with a body corporate. Simply drawing the easement on the plan of subdivision was an expedient. The effect was to give the owners and successors of Lot B an easement of carriageway over that portion of Lot 2 traversed by the easement. Correspondingly the owners and successors of Lot 2 were given an easement of carriageway over Lot B to the extent that the easement traversed Lot B. The Watts Lane land was given no entitlement to the easement at all. Whether or not the Responsible Authority which issued the permit and presumably treated the relevant condition as satisfied, appreciated these fine points of survey and conveyancing must be a matter of speculation. In the circumstances it is inappropriate for us to comment upon the propriety of what was done. Nevertheless, as Mr Loy himself conceded, it was the use of this expedient which planted the seeds of the present dispute.

5. Returning to the narrative, Lot B was further subdivided by plans of subdivision LP14809 and LP201701. LP148019S approved 15 March 1985 and registered under the Transfer of Land Act. These plans subdivided what had previously been Lot B of some 49.93ha into Lot C of 32.38ha and Lot 3 of 11.55ha. This Lot 3 abutted Lot 2 on the south-eastern part of the easement/track.

6. Mr and Mrs Perkins, the principal objectors in this proceeding bought Lot 2 on the original plan of subdivision in August 1984 and also bought the adjacent Lot 3 on the subsequent plan of subdivision in 1985. The Perkins built their house on Lot 3. Lot 2 on Plan of Subdivision No. 143551 is now comprised in Certificate of Title Volume 9525 Folio 330. It comprises an irregularly shaped parcel of land running from Hildebrand Road in the north-west to the rear of the subdivisional area in the south-east. Its boundary to the south-west follows the line of the ridge in the old track. The easement is located on Lot 2 for a bit over half its length at the south-eastern end. The present applicant, Focused Vision Pty Ltd, a company whose principals are apparently Mr and Mrs Murphy took title to this allotment under the Transfer of Land Act on 2 July 1999 and have since erected their house on it.

7. The present title situation then is that the whole of the original Lot 2 is now owned by Focused Vision Pty Ltd and that the former Lot B has been subdivided into some five allotments, namely Lot 3 owned and occupied by Mr and Mrs Perkins of 11.55ha; Lot 7 of 12.07ha owned by S. & A. Caruso; Lot 6 of 8.086ha owned by R.S. Koch; Lot 5 of 6.08ha owned by R. & L. Dalhi and Lot 4 of 6.174ha owned by T. & L. Doran. In addition to the Perkins, the Dalhis and the Dorans have an abuttal to the easement/track at its north-western end near Hildebrand Road. For the balance of its length, the easement/track traverses the land of Focused Vision and the Perkins. The Perkins' land is also affected by a further easement of way running approximately north from the Caruso's Lot 7 and the Koch's Lot 6 and giving them access to Hildebrand Road. This easement follows the western boundary of Lot 3, terminating at its north-west corner.

8. The present situation then is that the Focused Vision land is subject to easements of carriageway in favour of the land owned by the Perkins and all the other owners just mentioned. Since all owners other than Focused Vision are successors and owners of parts of the old Lot B and it was the original Lot 2 now owned by Focused Vision that had the right to the carriageway over that part of Lot B which is now owned by the Perkins (Lot 3) none of the other owners seems to have an easement of carriageway over the Perkins' land - save for Focused Vision.

9. In a memorandum to the Shire of Nillumbik which is now the responsible planning authority for this area, Mr Loy said:

"We are advised by Mr and Mrs Murphy [the principals of Focused Vision Pty Ltd] that the easement through their property is not being used in the manner intended by Condition 3 of Planning Permit N3637 which is `emergency bushfire access or escape route'.

We are advised that continued haphazard use of the easement by tractors and other vehicles at regular intervals close to their new house, is severally [sic scil severely] affecting their amenity, safety and piece of mind. We understand that officers of the Nillumbik Shire Council have already been contacted by both Mr and Mrs Murphy and Mrs and Mrs Perkins on a number of occasions over at least 12 months and that Council officers have also inspected the site."

10. At one point the dispute between the Murphys and the Perkins became so embittered that according to the Murphys the Perkins obstructed the easement and in a altercation Mr Perkins struck Mr Murphy inflicting multiple fractures of the jaw. This led to Mr Perkins being subjected to a form of intervention or apprehended violence order restraining his approach to the Murphys or their land.

11. The Focused Vision land has the postal address of 150 Hildebrand Road, Cottles Bridge. The Perkins land's address is 148 Hildebrand Road, Cottles Bridge. On 4 March 2003 surveyors Lawlor and Loy Pty Ltd lodged Permit Application No. 106/2002/15P with the Shire of Nillumbik as the responsible planning authority seeking "consent for the removal of a carriageway easement shown as E-1 over part of Lot 2, LP143551 [that is No. 150 Hildebrand Road]". This removal was sought subject to the preparation, execution and registration of an agreement under Section 173 of the Planning and Environment Act 1987 making provision for emergency bushfire access or escape route along the track/former easement.

12. The application was advertised by sending notices to the owners of adjoining property. Nine objections were received.

13. On 3 October 2002 the present application was commenced by Mr Loy acting for Focused Vision Pty Ltd. The review application was lodged pursuant to Section 79 of the Planning and Environment Act 1987 on the ground it was said that the Responsible Authority had failed to determine the permit application within the prescribed period. Objections lodged by owners of the Watts Lane land to the south-east of the subdivision area were withdrawn by letter dated 16 December 2002, signed for or on behalf of some eight owners of that land. They remarked:

"We expect that the original intent of Section 3 of the Shire of Eltham Permit No. 3637 be upheld, that is the provision of emergency or bushfire access or escape route for families on our property."

14. Focused Vision Pty Ltd has recently created an alternative access road which relieves the Murphys of the need to follow the easement across any portion of the Perkins' land to gain access to Hildebrand Road. Focused Vision says that with the extinction of the easement over its land, the Perkins should do likewise.

15. Mediation by the Tribunal proved unsuccessful. The matter came on for hearing on 24 March 2003 before Senior Member Gould. The Tribunal included no legally qualified member. Some three hours were set aside for the hearing on that day and the matter seemed to have been conducted on the basis that the easement was a "restriction" as that term is used in the Subdivision Act. Following the hearing Mr Gould sought further submissions as to whether the requirements of Section 60(5) of the Planning and Environment Act 1987 had been made out. The question then arose as to whether as a matter of law the easement could be regarded as a "restriction" within the meaning of the Subdivision Act and the Planning and Environment Act in any event. Consequently a further hearing was convened on the 27th of May with the Tribunal reconstituted so as to include a deputy president as well as Mr Gould.

16. Mr Barton on behalf of the Perkins contended that the present application could not be brought, as it seems it was being, under Section 23 of the Subdivision Act 1988 but rather, could be brought only pursuant to Section 36 of that Act. Mr Ruta, Counsel for the applicant said that he was unprepared to meet this contention. The 27th of May therefore was taken up with our hearing Mr Barton's further submission and conducting a view in the afternoon. The matter was further adjourned to 23 June when Mr Barton concluded his submission, Mr Ruta replied and there was a brief reply from Mr Dafnomilis and Mr Phillips on behalf of the Responsible Authority.

17. To understand the procedural byplay and to provide a proper basis for consideration of the merits of this proceeding it is necessary to resolve the questions which took up most time in the latter two days of the hearing, namely what is the nature of an application such as Focus Vision has made; what section of what statute authorises such an application and according to what criteria must it be judged?

18. It is necessary first to say something about what an easement is. The definition in the standard work Gale on Easements (7th Edition 1999) has been approved by Barton J of the High Court of Australia in Concord Municipal Council v Coles [1905] HCA 35; (1995) 3 CLR 96, 110 and Olsson J as a Member of the Full Supreme Court of South Australia in Mitcham City Council v Clothier [1994] SASC 5102; (1994) 62 SASR 394, 397 and by Bradbrook and Neave Easements and Restrictive Covenants in Australia (2nd Ed) 2000 2 [1.2] the definition is as follows:

"An easement may be defined to be a privilege without profit, which the owner of one neighbouring tenement hath of another, existing in respect of their several tenements, by which the servient owners is obliged `to suffer or not to do' something on his own land for the advantage of the dominant owner."

19. Professors Bradbrook and Neave in more contemporary language remark at page 3 of their work:

"[1.3] ... an easement concerns a right to do an act or to prevent an act from occurring, that is not a right to have an act done. An easement thus requires no more than sufferance on the part of the owner of the servient tenement."

20. As a matter of terminology the land having the advantage of the easement is described as the dominant tenement and the land over which the easement exists is described as the servient tenement. There is considerable argument as to the precise nature in all the circumstances of the easement which the present application seeks to extinguish to which we will return later. It is fair to say however that one of the most common and best recognised forms of easement described colloquially as an easement of way or an easement of carriageway gives a right to the owner of the dominant tenement to "pass and re-pass" over the relevant portion of the servient tenement.

21. Section 72 of the Transfer of Land Act 1958 which governs the Torrens system in this State authorises the Registrar to make "a recording" on a title "that the land therein described is subject to or has a pertinent thereto an easement". The effect then is to authorise the Registrar to note upon the title of Blackacre that it is subject for instance to an easement of carriageway in favour of the owner of Whiteacre and on the title to Whiteacre, that the ownership of this land has appurtenant to it a right of carriageway over Blackacre.

22. Under the Common Law system of conveyancing, that is, the rule that applies to land which is not subject to the Torrens system, an easement was created by way of deed, so as to be effective at law. More informal arrangements could be enforceable at equity. For land under the operation of the Transfer of Land Act 1958 as the present land is, in addition to the modes of creation specifically dealt with in the Transfer of Land Act there may be a number of other ways to create easements, for instance, pursuant to the doctrine of lost modern grant or pursuant to Section 62 of the Property Law Act 1958 (though the latter is subject to some debate) etc. Since the easement in question is one specifically recorded under the Transfer of Land Act it is unnecessary to say any more as to these other forms of creation.

23. Section 72(2) of the Transfer of Land Act provides for registration or recording of an easement created by agreement between the owners of the dominant and servient tenement. The sub-section also authorises the Registrar to record easements created by a number of other procedures to which it is not necessary to turn.

24. Perhaps the most common means of creation of easement today is in the course of subdivision. Section 98 of the Transfer of Land Act entitles the proprietors of allotments of land shown on approved subdivisions or registered plans to have the benefit of "all such easements of way and drainage and for party wall purposes and for the supply of water, gas, electricity, sewerage and telephone and other services to the allotment or the lot on or over or under the lands appropriated or set apart for those purposes respectively on the plan of subdivision as may be necessary for the reasonable enjoyment of the allotment or lot and of any building or part of the building at any time thereon." as if these easements had been expressly granted. It was by this procedure that the easement now in question came into existence.

25. It will be seen that an easement is a property right. Whilst the planning system, its schemes, tribunals, authorities and so forth as established and provided for under the Planning and Environment Act 1987 have as their core function the regulation for the public benefit of the use and development of land by the land's owners and occupiers, it is not part of the core function of the planning system to re-adjust ownership rights as between such owners as distinct from regulate the use and development of land which they own. How then can an easement be extinguished by planning permit as the present application supposes that it can be? The parties suggested two provisions as forming the proper basis for this permit application. Mr Ruta on behalf of the applicant relied upon Section 23 of the Subdivision Act 1988. Mr Barton on behalf of the objectors Mr and Mrs Perkins submitted that the only provision authorising this application was Section 36 of the Subdivision Act 1988.

"23. (1) If a planning scheme or permit regulates or authorises the creation, removal or variation of an easement or restriction, the owner of the land burdened or to be burdened by the easement or restriction must, in accordance with the planning scheme or permit and with the Planning and Environment Act 1987, lodge a certified plan at the Office of Titles for registration.

(2) The consent of any other person who has an estate, interest or claim in the land is not required to the certification and registration of a plan referred to in sub-section (1).

(3) If the planning scheme or permit also relates to the subdivision or consolidation of land, the certified plan required by sub-section (1) may be a plan of subdivision or consolidation.

(4) If the planning scheme or a permit regulates or authorises the variation or removal of a condition in the nature of an easement in a Crown grant, a person may proceed under this section as if the condition were an easement and, where a person does so, this Act applies as if any reference to an easement included a reference to that condition.

(5) Sub-section (4) applies despite anything to the contrary in the Land Act 1958 or in a Crown grant."

(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.

(1AA) In conferring powers on a Council or referral authority under sub-section (1) it is the intention of Parliament that, in considering a matter for the purposes of that sub-section, the Council or referral authority should make an assessment of the engineering and amenity aspects of the matter, is not bound to notify anyone affected or to hear objections, but objections to that assessment may be raised before the Tribunal.

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

(a) in accordance with any conditions to which the leave is subject, the owner may compulsorily acquire the easement and--

(ii) the Land Acquisition and Compensation Act 1986 applies to the acquirement of the easement, and for that purpose this section is the special Act and the owner is the Authority; or

(b) in accordance with any conditions to which leave is subject, the owner may submit for certification and lodge for registration a plan to remove the easement and--

(i) unless the Tribunal otherwise directs, the consent of any person having an interest in land benefited by the easement is not required for its removal, and section 22(1)(c)(d) and (da) does not apply to the removal of the easement; and

(ii) Parts 3, 4, 6, 7, 10 and 11 of the Land Acquisition and Compensation Act 1986 apply to claims for compensation on the removal of the easement by persons having an interest in land benefited by the easement as if the owner who removed the easement had acquired by compulsory process an interest in land benefited by the easement, and for that purpose this section is the special Act and that owner is the Authority.

27. Mr Barton referred to the decision of Mrs Gibson, sitting as a member of the Victorian Administrative Appeals Tribunal, Planning Division in Ogrodnik v Shire of Wellington (1996) 17 AATR 41. In Ogrodnik's case Mrs Gibson concluded that:

"Section 23 of the Subdivision Act can be used by an owner of land to create, vary or remove an easement over land which they own provided a planning permit is first granted to create, remove or vary any such easement." (1996) 17 AATR 41, 44

Hence, said Mr Barton, Section 23 could be relied upon only if Focused Vision is the owner of each relevant parcel of land, namely a dominant and servient tenement Nos. 148 and 150 Hildebrand Road. According to Mrs Gibson, he said where the land is not in common ownership, Section 36 had to be resorted to. Mr Ruta on behalf of the applicant submitted that this view was incorrect.

28. On the third day of the hearing Mr Barton said that he had carried out an exhaustive database search of Tribunal decisions and none of them cast significant additional light on this question.

29. Mr Dafnomilis who appeared with Mr Phillips on behalf of the Responsible Authority submitted that the present situation fell within what, according to Mr Barton, Mrs Gibson said was the proper scope of Section 23. The land affected by the application, namely 150 Hildebrand Road was in his submission, owned in its entirety by the permit applicant Focused Vision Pty Ltd.

30. It is difficult to credit that this matter should be dealt with pursuant to Section 36 of the Subdivision Act. First, if that is the correct authorising provision, the applicant has chosen entirely the wrong procedure. What Section 36 appears to require is a statement in writing by a responsible authority or referral authority in the course of consideration of a proposed amendment to a planning scheme or its implementation or a condition in a permit. Section 40(2) provides that an owner who seeks such a written statement from the Council and fails to obtain it may seek review from the Tribunal. Once the statement is forthcoming the process of acquisition or extinguishment of easement is done by a procedure of seeking leave from the Tribunal. Once leave is granted, compensation is to be awarded according to the procedures laid down in the Land Acquisition and Compensation Act 1986. An application for leave to acquire an easement under the Tribunal Rules is allocated to the Real Property List, not to the Planning List. An application dealing with the quantum of compensation is dealt with in the Land Valuation List not the Planning List. The procedure laid down by Section 36 is therefore quite different from an ordinary permit application which is the manner in which the present matter has been brought forward. Of course this may demonstrate no more than that the present application is misconceived, brought without jurisdiction and must be dismissed which would presumably be to the advantage of Mr Barton's clients.

31. More generally however, if Mrs Gibson meant to adopt the proposition attributed to her by Mr Barton in the passage which we have quoted already, it would be difficult to agree with her. Sub-section 2 of Section 23 specifically dispenses with the need for consent from "any other person who has an estate, interest or claim in the land". This is scarcely consistent with the section which according to Mr Barton's submission can be availed of only if there is an identity of ownership between both affected parcels of land. Further, there is no reason to think that Section 23 would operate differently with regard to "restrictions", an expression to which we turn in detail below but which clearly includes restrictive covenants. There is a wealth of Tribunal authority in which the owner of Blackacre seeks a permit to remove or modify a restrictive covenant affecting Blackacre for the benefit of Whiteacre and its owners. Section 60 of the Planning and Environment Act to which we will turn in detail later proceeds upon this assumption.

32. Whilst Section 36 may provide some useful points of comparison, it is clearly not the provision which this applicant has sought to invoke. Mr Ruta says and there is no reason to doubt him, that his client's application was based on Section 23 of the Subdivision Act. It must be judged according to that section and will succeed or fail in accordance with the rules which relate to such application.

33. The next question, is the correctness or otherwise of the proposition advanced by Mr Ruta for the applicant and denied by Mr Barton for the objectors that the expression `restriction" comprehends "easement" such that the present easement, the subject of this application, should be regarded as a "restriction". The expression "restriction" is defined in Section 3 of the Subdivision Act:

" `restriction' means a restrictive covenant or a restriction which can be registered, or recorded in the Register under the Transfer of Land Act 1958;

34. This expression was also used in Section 60 of the Planning and Environment Act and the definition there refers to the definition in the Subdivision Act. To complete the circle of definitions, the Planning and Environment Act 1987 also employs in various places the expression "registered restrictive covenant". The definition in Section 3 of the Planning and Environment Act for that expression is as follows:

" `registered restrictive covenant' means a restriction within the meaning of the Subdivision Act 1988"

35. Mr Ruta correctly observed that the word "a restriction" is not a term of art in property law or conveyancing. The Subdivision Act 1988 as the Parliamentary debates upon it demonstrate, is one of the early "Plain English" statutes. If the definitional structure that we have described is "Plain English" regrettably it is not "plain English". It is confusing to employ the defined word itself in a definition. The result is that there is no effective definition and no fixed meaning in law of the concept of restriction. It may be accepted that an easement in a general sense does operate as a restriction upon the rights of the servient owner. The existence of the present easement, for instance, would preclude Focused Vision from erecting a permanent structure obstructing passage along its course, such as a dam. The provision in Section 72(1) which we quoted earlier indicates that an easement can be "recorded" in the Register under the Transfer of Land Act 1958. Nevertheless, in our view, despite these considerations the word "restriction" in the Subdivision Act does not extend to an easement. Mr Barton took us to numerous references throughout the Act in which in the same section both easements and restrictions are referred to. It is sufficient for this purpose to note that in Section 23(1) we find a restriction to the creation, removal or variation of an easement or restriction merely indicating that an easement is a distinct and separate subject matter. Mr Ruta submitted that the usage was exegetical so that a reference to "a restriction or an easement" would be the same as a reference to "Taiwan or Formosa" two different names for the same subject matter. We reject that submission. Whatever likelihood there might be for usage such as this in an ordinary piece of prose, we think it unlikely in the extreme that Parliamentary Counsel would adopt such an approach. Moreover, the definitions make clear that the primary, if not the exclusive meaning of a "restriction" is a "restrictive covenant". An easement is not a restrictive covenant. The two words on any view cannot be synonymous in the way that "Taiwan" and "Formosa" are.

36. If this application must succeed or fail on the basis of Section 23 does that section authorise an application such as this? In Zullaphella Pty Ltd v Stonnington City Council [1999] VCAT 200 the Tribunal consisting of Senior Member Byard and Ms Withers observed that Section 23 is oddly worded. At paragraph 64 of their decision they said:

"We say that this is oddly worded because its terms seem to cast a duty and requirement on the owner of land burdened with a restriction to lodge a certified plan at the Office of Titles for registration merely if the planning scheme regulates or authorises the creation, removal or variation of a restriction, whether the owner wants such changes or not, see the use of the word `must'. This seems absurd. Surely the effect must be that the owner is only required to lodge a certified plan if it is sought to create, remove or vary a restriction and where such a step is regulated or authorised by the planning scheme."

37. The power of planning schemes to deal with these matters derives from Section 6A of the Planning and Environment Act 1987 which was inserted into the principal Act in 1991. Its heading interestingly enough is "easements, restrictions etc.". The section is as follows:

(1) In this section and in section 6(2)(g) `restriction' has the same meaning as in the Subdivision Act 1988.

(2) Subject to sub-section (3), a planning scheme may require a permit to be obtained before a person proceeds under section 23, 24A or 36 of the Subdivision Act 1988.

(i) the creation, variation or removal of easements or restrictions by agreement, prescription, abandonment, or otherwise by operation of law; or

(ii) the creation, variation or removal of easements or restrictions by or under an Act other than the Subdivision Act 1988; or

(iii) person from proceeding under the Subdivision Act 1988 in relation to the creation, variation or removal of an easement or restriction referred to in sub-paragraph (i) or (ii); or

(i) the variation or removal of a covenant under Division 2 of Part 4 of the Heritage Act 1995 or section 3A of the Victorian Conservation Trust Act 1972; or

(ii) the variation or removal of an easement required to be created in favour of a public authority, Council, Minister or other person under an Act other than the Subdivision Act 1988, without the consent of that person; or

(c) allow a person to proceed under section 23 of the Subdivision Act 1988 to create, vary or remove an easement or restriction over land that the person does not own.

(4) A provision included in a planning scheme under section 6(2)(ga) is in addition to section 362A of the Land Act 1958, and a person may choose whether to proceed under that section or the provision of the planning scheme."

38. It would be seen that sub-section (2) allows a planning scheme to "require a permit to be obtained before a person proceeds under Section 23 ... of the Subdivision Act 1988". None of the restrictions on the power of a scheme to deal with these matters set out in Section 6A seems relevant here. The Scheme provides the relevant restriction at Clause 52.02:

39. "52.02 EASEMENTS, RESTRICTIONS AND RESERVES

- 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."

40. There are no decision guidelines prescribed by the Scheme. The effect of these provisions seems to be for the first time to allow the planning system by permit to expunge proprietary rights for present purposes, easements by the purely administrative process of a planning permit. The provision is more radical in its operation in Section 36 which had a longer history, previously appearing in a rather different form in the Sale of Land Act 1962 which requires a quasi judicial procedure in the Tribunal before leave to acquire or remove an easement is granted. This represents a fairly radical departure in property law and one would have expected the result to be set out in clear and direct language rather than in the odd circular and obscure manner in which the result seems to be achieved here. For the reasons given however, we accept that these provisions do render the present application competent.

41. Since there are no decision guidelines in the Scheme, according to what criteria do we adjudicate upon this application? Section 60(2) of the Planning and Environment Act 1987 lays down the matters which a responsible authority must consider before removing or varying a restrictive covenant. According to that sub-section the Council must be satisfied that a person having the benefit of the covenant

(c) loss arising from change to the character of a neighbourhood;

as a consequence of the removal or variation of the restriction."

42. Where the covenant is registered "before 25 June 1991" by virtue of sub-sections (4) and (5) of Section 60 the removal or variation must not be given unless the person or persons with the benefit of a covenant "will be unlikely to suffer any detriment of any kind (including any perceived detriment and any beneficiary objecting is acting vexatiously and not in good faith". As we read the statute, since those matters apply to restrictions only and not to easements, those matters cannot be directly applicable to the present dispute. They are relevant at most as matters of comparison or perhaps analogy.

43. On the basis of these ground rules we now turn to the merits of the proceeding.

44. Mr Dafnomilis and Mr Phillips on behalf of the Responsible Authority made no submission as to whether a carriageway easement is a "restriction". They said however that Council was guided by the following tests which had, they said, been applied in a number of other cases (thought they did not identify those cases or the source of the tests). The tests were as follows:

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

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

45. They referred to Section 60(5) of the Planning and Environment Act and said that since the Perkins claimed to make regular use of the easement and said that since they would need to establish a new double track if deprived of access to it "this new track would not only cause a financial loss but it could also be at the cost of some tree removal. This detriment may be considered as perceived detriment and Section 60(5) allows consideration of this to be made." They said Council did not believe that the objection made by the Perkins was vexatious or made other than in good faith. They noted that a proposed compromise had been considered but rejected by the Perkins. They did not accept as relevant contentions made by the applicant that removal of the easement in so far as it affected No. 148 would increase the value of that property.

46. They said that the provision of emergency bushfire access and an escape route as required by the 1981 planning permit should be overlooked. They said it was unfortunate that the Country Fire Authority "did not comment or provide their views on the application." They concluded by saying "it is believed that the applicant has the correct intentions by proposing a way in which the purpose [viz emergency fire and bushfire escape access] and the intent of the easement can be achieved. However, as the objectors who also have legal rights to the easement have indicated that they currently use the easement and that they are likely to suffer detriment, in a variety of different ways if the removal of the easement took place, the Responsible Authority must not grant a permit which allows removal of the easement."

47. Mr Ruta said it was important to bear in mind the purpose for which this easement was created. He submitted the only persons who were concerned to obtain the emergency fire access were the properties on Watts Lane. Accordingly, neither the Perkins nor any other owners of the former Lot B should be regarded as enjoying the benefit of this easement. In his submission any right that the Perkins might enjoy were at best secondary rights. It was not sufficient he said for such secondary rights to be enforceable that they would avoid inconvenience for the holder of the easement. He referred to the decision of Byrne J in Biki v Chessells [2002] VSC 501 paragraph 12.

48. Mr Ruta said that if the original subdivision were created today the issue of fire access would have been dealt with by the Section 173 agreement. He referred to the recent requirements laid down by the Shire of Nillumbik for a subdivision at Vista Court, Yarrambat. He stressed that the objectors from Watts Lane had withdrawn their objections; he said there must be a risk that Mr Perkins would block the easement in the case of emergency in light of the events which occurred on 21 March 2002 when Messrs Perkins and Murphy had their altercation.

49. Mr Ruta relied upon the evidence of Sworn Valuer Mr Moroney to the effect that removal of the easement in so far as it affected the Perkins' property would enhance the value of that property by some $10,000. Mr Moroney said that in contrast the easement over the Focused Vision land giving access to the rear portions of the Perkins' land was of relatively little significance. He said that there should be an allowance of perhaps $1,000 or $2,000 maximum for that loss. Inferentially therefore the present proposal would leave the Perkins $8,000 to $9,000 ahead.

50. Mr Barton submitted that this matter was dealt with and governed by Section 36 of the Subdivision Act. For reasons given we have already rejected that submission.

51. Alternatively he submitted that if as Mr Ruta submitted the matter was governed by Section 23 the easement was regarded as a restriction and therefore Section 60(5) of the Planning and Environment Act applied. The requirements of that section had not been made out. Finally if Section 23 applied and Section 60(5) did not because the easement was not a restriction, then the matter was at large for consideration according to general planning considerations. He noted that no planning evidence or contentions had been brought forward by the applicant. He referred to Ingberg v Bayside City Council [2000] VCAT 2307 paragraphs 10 and 11 a decision of Mrs Rickards. Mr Barton relied upon the evidence from an estate agent Mr Balharrie which denied the assertions made by the applicant's valuer Mr Moroney that the removal of the easement in so far as it affected the Perkins' property would add some $10,000 in value. Mr Balharrie said that there would be a loss of land if the Perkins had to construct a track on their own land to replace the easement and this would mean a loss of value to them of some several thousand dollars.

52. Mr Barton also relied upon the evidence of Mr Perkins to the effect that he made significant use of the easement. Mr Balharrie who in addition to experience in real estate had both tertiary qualifications and practical experience in primary production said that loss of the easement would create problems of access for the Perkins particularly in wet weather.

53. All in all this proceeding has proved fairly perplexing. The result seems to be that as part of the planning system, the Tribunal is given power if it thinks fit to extinguish a proprietary right viz. an easement without any guidance or criteria as to the proper approach to adopt.

54. Before considering what criteria should guide us in the circumstances it is necessary to deal with some preliminary matters. First, the contention that the Perkins had no right to use the easement because:

(b) the appropriate escape route for the Perkins according to Mr Ruta would be towards Hildebrand Road not to the south along the easement

must be rejected. The present easement is recorded as an encumbrance on the title to No. 150 as a carriageway easement. As Mr Barton correctly observes, the combination of Sections 72 of the Transfer of Land Act and the 12th Schedule indicate the content of that easement. It is an entitlement to pass and re-pass without any special conditions relative to fire access. This is an easement that is granted to the Perkins and the owners of other parcels of land formerly comprising Lot B. It is not a right which is bestowed at all upon the Watts Lane parties. Whether the present state of affairs is in conformity with the 1981 permit or not is not for us to consider. If anything further or different is required to be done to satisfy the 1981 permit condition, it would be a matter for Council or the Watts Lane parties to take up in separate proceedings.

55. The effect of Section 98 of the Transfer of Land Act 1958 to which we have already made reference is that the easement of carriageway created by the plan of subdivision from 1983 was to grant easements to the respective parties as if they had been granted by deed. Since this procedure was adopted the successors in title to the subdivider cannot derogate from what he did. We reject the submission made by Mr Ruta that the record of the easement on the title to No. 150 is not subject to the same indefeasibility provision under Section 42 of the Transfer of Land Act as are other interests or entitlements registered or recorded in the Register Book. Mr Ruta submitted that the easement was equitable only. There is no basis for this contention and he referred to none.

56. In short, this easement must be judged for what it is, not for what it might or might not have been had the subdivider proceeded in some different fashion.

57. It follows that we reject the contentions:

(a) that the Perkins do not have the benefit of the easement over No. 150; and

(b) that the easement is capable of being availed of solely for the purposes of fire access or emergency escape.

58. The absence of any stated criteria for decision leaves us to consider what if anything this dispute has to do with the planning system. Typically an application to remove or modify a restrictive covenant relates either to the use of the subject property or its redevelopment, typically from a single dwelling house to a medium density or dual occupancy. An application for removal or modification of a restriction to allow these matters to occur would relate to development. The removal or creation of a right of way might be relevant to the ability of a landowner to subdivide his property. Subdivision is of course within the concept of development in the Planning and Environment Act. This present application has no connection at all with mainstream planning issues. It relates solely to a private neighbourhood dispute. This lack of connection with any mainstream planning issue seems sufficient in itself to warrant our directing that no permit issue. In our view to extinguish a proprietary right such as an easement which is being currently used by planning permit requires some compelling planning consideration.

59. There are however other considerations. Clearly there would be a substantial detriment suffered by the Perkins if this application were granted. In some of his cross-examinations Mr Ruta seemed to be suggesting that the Perkins make no use of this easement at all. Mr Perkins' evidence on the first day was contrary to that, though the effect of the intervention order now precludes him personally from using the easement. His servants, family and licensees could still use it. Moreover it represents an advantage which could be onsold to a successor in title. The intervention order may not be indefinitely extended. In their explanatory memorandum to the Shire, Lawlor and Loy said:

"We are advised that continued haphazard use of the easement by tractors and other vehicles at regular intervals close to their new house is severally (sic scil severely) affecting [the Murphys'] amenity, safety and piece of mind."

This is scarcely consistent with an easement which is never availed of.

60. Mr Moroney, the applicant's own valuer was prepared to ascribe a valuation of $1,000 to $2,000 to the easement rights which the Perkins now enjoy. We need not stay to consider the adequacy of that assessment. It is sufficient to note that even on the applicant's own case the easement does have a monetary value beyond mere petty cash. This must also give the lie to Mr Ruta's contention that removal of the assessment would create not even a perceived detriment for the Perkins.

61. Mr Ruta spoke in fairly vague terms of an "ex gratia" payment of $5,000 against the cost of establishing an alternative track along the Perkins own land in lieu of the easement. If this were a compensation matter under Section 36 there would be no question of seeking to treat the payment as "ex gratia" or attempting to attach to it, as it seems Focused Vision wants to, a requirement that the track actually be constructed. The most extraordinary element of all was that Mr Moroney's entire valuation was based upon the premise that the easement in so far as it traversed the Perkins' land would be removed, yet this proposal entails no step which could achieve that result. It was only when pressed under reply that Mr Loy - not Mr Ruta - said from the back of the hearing room that a condition could be included in the permit requiring the necessary steps to be taken by Focused Vision for the surrender of that easement.

62. If we apply Section 60(5) of the Planning and Environment Act by analogy as a test to this application, it must fail. If we apply Section 60(2) the test for the removal of more recent restrictions, the application must also fail. The extinguishment of an easement which even the applicant's valuer values at $1,000 to $2,000 is a material detriment. There is nothing in Section 23 of the Subdivision Act or in Section 60 of the Planning and Environment Act that enables detriments to be inflicted upon respondents to these sorts of applications subject to the payment of just compensation. This concept is to be found in Section 36 of the Subdivision Act but it is nowhere to be found in Section 23 or the related provision.

63. The basis upon which the application was made to the Shire Council is somewhat astounding. The easement of way existed when Focused Vision purchased Lot 2. The decision of the Murphys to build their house on the ridgeline is understandable enough but a necessary consequence of a decision to buy land which is

(a) subject to a registered easement of carriageway which

(b) traverses past the most obvious place for the erection of a dwelling house on the land

is that the occupants of the dwelling house will have to put up with the passage of tractors and other vehicles at regular intervals. The civil law has remedies for excessive and inappropriate uses of easements. The criminal and civil law has remedies for bodily assault one of which remedies has already been availed of. None of these matters in our view is a proper matter for this planning jurisdiction or to form the basis of a permit application such as this.

64. All questions of law have been determined by the Presiding Deputy President.

65. Mr Barton submitted that the applicants had unreasonably protracted this hearing and that it could have been disposed of with at least one sitting day less. Accordingly he submitted there should be an award of costs for one day's hearing in his client's favour, whatever the outcome of the proceeding.

66. Mr Ruta submitted that upon the assumption that his client would be successful, costs should follow the event.

67. Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 creates a presumption that costs in the Tribunal lie where they fall. That provision is consonant with the cost rules which have applied in the predecessor Tribunals exercising the permit review jurisdiction which this List does (for instance the Planning Division of the Administrative Appeals Tribunal Victoria and the Planning Appeals Board). In our view it would be contrary to the presumption in Section 109(1) in a proceeding such as this to approach costs on the basis that they follow the event. Moreover, we reject the submission made by Mr Barton that one day's costs should be awarded to his client because of delays. The matter was recalled by the Tribunal on the 27th of May because certain issues, including Section 60(5) of the Planning and Environment Act had not been dealt with. There is no basis for ascribing blame for this matter to any one party. On the 27th of May Mr Ruta was not in a position to respond to Mr Barton's submissions that this mater was properly governed by Section 36 of the Subdivision Act and not by Section 23 (submissions incidentally which we rejected), nevertheless the time which might otherwise have been taken up hearing Mr Ruta's further submissions was put to good use in the conduct of a view on the afternoon of 27 May. Having regard to the complexities of this matter it was one which demanded a view of which the parties and their advisors were present. This is not a typical permit review application where Tribunal Members can take the proverbial kerbside view either from within or outside their car standing in the public street. In our view, therefore costs should lie where they fall.