Glen Ora Estate Pty Ltd v Greater Western Water Corporation [2026] VCAT 103

1. For the description of the affected land, in section 18 of the application form, substitute:

Parts of the land in Munro Avenue, West Avenue, Burwood Avenue, Auburn Avenue, Vermont Avenue, Elwood Avenue, Penna Avenue, Rankine Avenue and Whitehill Avenue, Sunshine North plus part of the railway land to the west of Munro Avenue

1. For the name of the decision maker, substitute:

1. The decision maker's decision dated 1 July 2025 is affirmed.

1. The decision maker has foreshadowed that it wishes to make an application for costs. By 4:00pm on 16 March 2026, the decision maker must give to the Tribunal and the applicant in the proceeding a copy of any such application and supporting submissions. The application must be made using the online form available at https://www.vcat.vic.gov.au/documents/forms/application-costs-or-fee-reimbursement-planning. The supporting submissions must explain the following:
   1. The basis upon which costs are sought.
   2. The amount and details of the costs claimed, including any itemised bills with invoices where relevant.
   3. The basis on which the costs are calculated. For example, whether on a standard or indemnity basis, and whether on the County Court or Supreme Court scale. Rule 1.07 of the Victorian Civil and Administrative Tribunal Rules 2018 (Vic) fixes a default scale of costs.
   4. The reasons why costs should be awarded having regard to the provisions of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
   5. A copy of any document relied upon in the costs application or supporting submissions.
2. If the decision maker makes an application for costs in this proceeding, it may be required to pay an application fee. For more information, see the VCAT website.
3. By 4:00pm on 6 April 2026, if the applicant in the proceeding wishes to oppose or otherwise respond to the application for costs, it must give to the Tribunal and the parties:
   1. Submissions which explain its position in respect of the costs application, including any basis on which it opposes the application; and
   2. A copy of any documents relied on in its submissions.
4. Unless varied by further order of the Tribunal, the hearing of any application for costs will be conducted 'on the papers' at 10:00am on 20 April 2026. No attendance is required. If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences.
5. If a party objects to the application for costs being determined 'on the papers', they must advise the Tribunal and the parties of this by 4:00pm on 13 April 2026 and provide reasons for their objection.

1. Any request for further or alternative procedural orders from the Tribunal must be made in writing and a copy must be given to all parties.

Ronald Silverstein, director, Glen Ora Estate Pty Ltd

Stephanie Mann of counsel, instructed by Robert Boag of Ashurst Lawyers. She called the following witness:

• Michael Proitsis, Civil Engineer, CMP Consulting Group

1. This proceeding concerns a dispute about whether a land owner should have permission to construct water mains along certain roads and connect those mains to the water supply network so that other owners abutting those roads have water supply services.
2. That might sound as if this is a straightforward dispute. However, there is a wider context to the dispute that makes the proposal and this proceeding complex. We now refer to some of that context.
3. In Sunshine North, in an area northeast of the intersection of Munro Avenue and the Melbourne to Sydney railway line ('railway line') and west of the Maribyrnong River, lies the Solomons Heights Estate ('estate'). Glen Ora Estate Pty Ltd ('Glen Ora') subdivided land to create the estate in 1926. The estate contained 440 small lots. A plan of the estate is at figure 1, below.

Figure 1: Plan of the estate (bounded in red line). Source: Michael Proitsis, statement of evidence, p 7.

1. In this figure, Munro Avenue forms the southern boundary of the estate, the railway line forms the western boundary of the estate and to the east of the estate is the Maribyrnong River.
2. There are several 'private roads' in the estate. We refer to them as private roads because Glen Ora is the registered owner of the land in the roads. Munro Avenue is one of those roads. The land in the roads has never been vested in or transferred to the relevant municipal council, Brimbank City Council ('Council') or its predecessors. The roads are 'paper' roads because they are not constructed and contain no water, sewerage or electricity services.
3. Glen Ora sold all the lots soon after 1926. The lots are currently owned by many and various entities, mainly individuals and corporate bodies. Glen Ora does not currently own any of the lots. Partly due to the absence of services, none of the lots are developed. From an aerial photograph (see figure 3, below), the estate appears as a large paddock in a sea of urban development. Most of the development west of the railway line, and north and south of the estate is industrial development.
4. Mr Silverstein and his associate Mr Apostoloff acquired control of Glen Ora in 2014. Glen Ora now wants to promote, or facilitate, the development of the estate. As a commercial venture, Glen Ora is proposing to provide services in the roads so that individual lot owners can access and develop their lots.
5. Glen Ora submitted that it proposes to charge owners to connect to electricity services provided by Glen Ora and the fees will be set to defray all its infrastructure (including water infrastructure) costs and provide some profit.[2] Glen Ora did not inform Greater Western Water Corporation ('GWW') about the terms of those charges when it applied to GWW for consent to connect water mains (that Glen Ora intended to construct) to GWW's network. Glen Ora also did not inform GWW about whether lot owners were consulted about Glen Ora's proposed charges.[3]
6. Despite Glen Ora's efforts over more than 10 years to pursue its objectives, it has not yet provided any services. The reasons for the delays are many and varied. Two reasons stand out.
7. The first reason for delay is the unusual nature of Glen Ora's scheme, in which the road owner (Glen Ora) controls whether services are constructed in the roads but does not own any of the lots which would ultimately benefit from the services. The more conventional model is for an owner to subdivide, to create and construct roads, to provide services (including water mains) in the roads, to transfer those roads to road authorities on subdivision registration, and to then sell the subdivided serviced lots.
8. Glen Ora's scheme relies on retaining ownership of the roads during road construction and service provision and it states that it will transfer the roads to the Council only when 95% of the lot owners have connected to the services provided by Glen Ora. We view this as a private infrastructure contributions scheme payable by participating lot owners as opposed to legislated and transparent contributions payable by either the subdivider or subsequent lot owners to public or servicing bodies.
9. The second reason for delay is the environmental values of land in the estate. In short, part of the estate contains nationally significant grasslands that are protected under State and Commonwealth law.[4] In 2017, Glen Ora and the Commonwealth Minister for the Environment and Energy entered into an agreement under section 146 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act') for the southern part of the estate bounded by Munro Avenue, Whitehill Avenue, Vermont Avenue and the railway line. Glen Ora agreed to prepare a plan that sets out proposed actions and measures to avoid and mitigate impacts on protected matters.
10. Glen Ora submitted that:
    • it has prepared a plan and given it to the Commonwealth for its assessment;
    • the plan provides for mitigation areas in the southern part of the estate in which no disturbance of the grasslands will be permitted; and
    • the Commonwealth has told Glen Ora that it will not finalise its assessment of the plan and endorse it until Glen Ora's proposed 'actions' (ie the infrastructure works on its land) have been approved by relevant State authorities.[5]
11. Other reasons for delay that we will briefly mention include:
    • Supreme Court proceedings between Glen Ora and the Council in 2017 and 2018 that led to the Court declaring that the estate's roads were neither public highways nor public roads and that the roads had not vested in the Council;
    • securing agreement from rail authorities to construct works below the railway line to connect Glen Ora's proposed works to the water network;
    • two 'development works applications' in 2015 and 2021 by Glen Ora to GWW for consent to provide water supply to the estate that, although consent was granted, lapsed when Glen Ora did not enter a development deed, that being the usual next step before works can start;[6]
    • responding to what Glen Ora submitted was illegal dumping of waste on the land in its roads (including roads in the southern part of the estate) and to a resulting Environmental Action Notice ('EAN') issued by the Environment Protection Authority ('EPA') under the Environment Protection Act 2017 (Vic) ('EP Act');[7] and
    • negotiations with the owner of neighbouring land at the eastern end of Munro Avenue to subdivide that land to create residential lots and to construct the eastern end of Munro Avenue.[8]

1. On 20 March 2025, Glen Ora submitted a 'development works application' for consent to connect water supply services in the southern part of the estate (being land between Whitehill Avenue and Munro Avenue) ('connection application') to GWW's works in Knight Avenue.[9]
2. The southern part of the estate is shown in figure 2, below.

Figure 2: Plan of southern part of the Solomons Height estate. Source: Plan on Brimbank City Council website, tendered by GWW during the hearing.

1. The plan at figure 2, shows the railway line to the west and the parts of nine streets in the southern part of the estate. Munro Avenue is shown with a green and orange line. The land to the south of Munro Avenue is outside the southern part of the estate as is land to the east of Vermont Avenue and to the north of Whitehill Avenue. Glen Ora owns the land in these roads in three titles, as marked in the three different colours.
2. Glen Ora attached to the connection application plans of the proposed works.[10] The plans show the works connecting to GWW's water main in Knight Avenue on the west side of the railway line (involving works beneath the railway line) and water mains (and associated elements, such as hydrants) in all or part of nine roads in the estate that are owned by Glen Ora.[11]
3. Glen Ora's connection application stated that it was 'on the basis' of specified 'arrangements', which we summarise as:
   • Glen Ora will build all roads within the estate to the Council's engineering standards.[12]
   • Glen Ora will maintain ownership of the roads and then 'hand them back' to the Council as public roads on the earlier date on which either 95% of the lots in any road have been fully serviced or no later than 25 years from the day the lots in any road are 'fully serviced'.
   • Glen Ora will grant GWW a six metre wide easement over each road in the private road network.[13] GWW will be granted 'exclusive traffic control rights' in each easement while the water infrastructure is constructed.
   • Glen Ora will comply with relevant provisions of the current GWW 'Land Development Manual' ('Manual')[14] and with sections 5.4.3 and 5.4.4 of the Water Services Association's 'Water Supply Code of Australia - Melbourne Retail Water Agencies Edition' ('Water Supply Code') as adopted by GWW.
   • Glen Ora will locate roadworks and water (and other) services within the boundaries of the private roads. Glen Ora will pay the Council its normal administration and supervision fees before roadworks start.
   • Glen Ora will sign a development deed in the form and substance as currently displayed on the GWW website.
   • The sewerage and water drawings will be the same as previously submitted with any additional drawings required by GWW.[15]
4. On 6 June 2025, GWW advised Glen Ora that it did not support the specified 'arrangements' (above) in the connection application. GWW told Glen Ora that the connection application could be supported only if it was implemented in one of two alternative options.
5. We summarise the first option as requiring Glen Ora to vest the water infrastructure in GWW and to vest the land in the relevant nine roads in the Council before the water mains were 'used for servicing purposes' ('vesting option').
6. We summarise the second option (the 'easement option') as requiring:
   • Glen Ora to grant easements over the parts of the relevant roads in which the water mains would be located;
   • road construction to the Council's standards equivalent to that managed under the Road Management Act 2004 (Vic);
   • the roads to then be maintained by Glen Ora (or its successors) in perpetuity or until the roads were vested in the Council; and
   • creation of an owners corporation 'covering all lot owners' in the southern part of the estate to enable GWW to charge the owners corporation for service and usage based on a meter to be installed where the mains enter Glen Ora's roads.
7. GWW also told Glen Ora in correspondence dated 6 June 2025 that with either option Glen Ora must identify the lots intended to be serviced by the water mains and must provide the consent of those lot owners (under the vesting option) or the owners corporation (under the easement option).
8. On the same day, Glen Ora told GWW that it would not adopt either of GWW's options.
9. On 1 July 2025, GWW refused to consent to the connection application.[16]

1. On 15 July 2025, Glen Ora applied to the Tribunal to review GWW's refusal of the connection application.[17]

1. The review application included ten questions of law. We will not include them in these reasons. It suffices to states that not all are proper questions of law. The relevant questions are addressed as part of our assessment of the review application.

1. Shortly before the hearing, Glen Ora confirmed with GWW that it would be asking the Tribunal to consider a modified connection application.
2. At the hearing, Glen Ora told us that the works in the modified application were the plans dated 15 February 2022[18] and 4 October 2022.[19]
3. The modification, in substance, reduced the extent of water infrastructure works to Glen Ora's land in Munro Avenue.[20] Figure 3, below, shows the part of Munro Avenue, approximately 700 metres in length, in which Glen Ora claims the works would be located.[21]

Figure 3: Land subject to modified connection application. Source: Glen Ora's 'Locality Plan' in Tribunal Book page 1137

1. According to Glen Ora, figure 3 also shows the lots to be serviced in the modified connection application being the lots shown on the north side of Munro Avenue. The part of Munro Avenue and the lots to be serviced are together shown as the 'extent of works' in figure 3.
2. Two of the main differences between the plans in the original connection application and those in the modified connection application are that there are more details on road construction and drainage, and some references to locations for other services such as electricity, gas and telecommunications.
3. Otherwise, the 'arrangements' in the original connection application, to which we have referred, would continue to apply.
4. Glen Ora conceded that the plans in the modified connection application inaccurately include works in a section of West Avenue, which runs north off Munro Avenue shortly to the east of the railway. Figure 4, below, shows this detail.

Figure 4: Plans for modified connection application, sheet 5 of 25. Source: Tribunal Book p 1142.

1. Glen Ora submitted that we should disregard the works in West Avenue and proposed connection to the 10 lots in West Avenue shown on those plans.[22]
2. There are potential legal difficulties with us considering the modified connection application. These potential difficulties stem from there being no express power in either the Water Act 1989 (Vic) ('Water Act') or the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') for the Tribunal to amend the connection application decided by a water authority.[23]
3. We do not need to decide these difficulties because Glen Ora did not formally seek leave to amend the connection application. Glen Ora merely asked us to informally consider the modified connection application.
4. At the hearing, we proceeded to consider the modified connection application on an informal basis because GWW did not oppose our doing so on that basis.
5. At the hearing, we told the parties that:
   • if we were to ultimately support the modified connection application, we would use our powers to grant consent for the varied works in the modified connection application;[24] and
   • if we were to ultimately not support the modified connection application, we would affirm GWW's decision on the original connection application.
6. The parties did not oppose the form of these alternative outcomes.

Description of land in which the works are located

1. There are inconsistencies between the description of land in which the works are located in the original connection application, the review application, and the modified connection application. This has caused confusion.[25]
2. To summarise, the description in both the original connection application (as described by GWW in its decision) and the review application is '57R Munro Avenue (Lot 1 R1 PLN 76219) and 87R Munro Avenue (Lot R3 on PLN 10467) in Sunshine North'. This is inaccurate and confusing because it excludes the railway land and the other streets in the southern part of the estate. As well, the description in the modified connection application inaccurately refers to all the land in 57R and 87R Munro Avenue when only part is affected.
3. As a housekeeping measure, we will formally amend the land description in the review application to be parts of the nine specified streets in the original connection application plus the railway land.

1. In its submissions, Glen Ora seeks an order setting aside GWW's decision and granting consent for the varied works in the modified connection application; directing GWW to provide a letter of offer in specified terms; directing the signing of a development deed within 90 days; and directing that works must start only when all the following occurs (in summary):
   • Glen Ora obtains approval under the EPBC Act.
   • Glen Ora obtains planning approval under the Brimbank Planning Scheme ('planning scheme') to clear native vegetation in Munro Avenue.
   • Glen Ora obtains approval from relevant rail authorities and operators to construct a water main beneath the railway line.
   • Glen Ora obtains approval from the Council to construct Munro Avenue (including drainage works) as shown on the modified connection application plans.
   • Glen Ora grants a six metres wide easement in favour of GWW in terms specified by GWW.
   • Glen Ora gives GWW a bank guarantee for maintaining (including 're-sheeting') Munro Avenue for 10 years from the date approval is granted for road construction, including drainage works. If there is disagreement as to quantum of the guarantee, the quantum must be determined by an arbitrator appointed by the Chartered Institute of Arbitrators within seven days from the 'completion of trial' in this proceeding.[26] Glen Ora and GWW must agree to share the cost of arbitration.

1. Glen Ora applied for consent to connect works to the water network ('the works of the Authority') under section 145(1)(a) of the Water Act. GWW refused consent under section 145(3)(a). Glen Ora applied to the Tribunal under section 145(3A).
2. The Water Act does not specify relevant considerations for a decision on a connection application. GWW would need to consider the relevant purposes of the Water Act which are:

To promote the orderly, equitable and efficient use of water resources.

To foster the provision of responsible and efficient water services suited to various needs and various consumers.[27]

1. The Water Act provides that the Tribunal must take into account any relevant planning scheme and, if appropriate. any relevant adopted amendment to a planning scheme.[28] As well, the Tribunal must take into account any environment reference standard or order under section 156 of the EP Act.[29] Only the first of these is relevant - being the Brimbank Planning Scheme. We will refer to planning matters later in these reasons.
2. GWW took into account the Water Supply Code and the Manual in refusing the connection application. These documents are publicly available and are a transparent guide to decision making. The Water Supply Code and the Manual do not have the status of primary or secondary legislation. Glen Ora did not claim the Water Supply Code and the Manual were irrelevant considerations, but claimed GWW had applied them incorrectly or inflexibly.
3. We will now briefly mention the key provisions of the Water Supply Code and Manual about which submissions were focused.
4. Section 5.4 of the Water Supply Code deals with water mains. Section 5.4.1 states water mains should be located in easements in road reserves. Section 5.4.3 states an alternative location might be municipal land or municipal reserves or driveways on common property in owners corporation subdivisions. Section 5.4.4 states water mains might also be located in easements on private land, depending on zoning and water authority consent. Such easements might be a temporary solution for landlocked subdivisions pending location in road reserves.
5. Section 3.5 of the Manual states water services must not cross 'private land' in accordance with the Water Supply Code.[30] Section 3.6 states all industrial subdivisions must be provided with water, recycled water (if mandated) and sewerage services. Section 3.7 states providing water services to an owners corporation subdivision depends on the size of the lots in the subdivision. For industrial developments, services must be provided in accordance with AS/NZS 3500 and must be owned, operated and maintained by the owners corporation or the lot owner.

1. GWW relies on the evidence of Mr Proitsis dated 12 December 2025. Glen Ora relies on the statements of Ronald Silverstein dated 3 December 2025 and 14 December 2025 and on the statement of Robert Apostoloff dated 4 December 2025.
2. Mr Proitsis is an expert in the field of civil engineering and has 27 years consulting experience in the water industry. He has acted for water authorities in implementing technical standards under the Water Supply Code. He has no current business relationship with GWW other than to prepare his statement of evidence in this proceeding. Mr Proitsis gave oral evidence and was questioned.
3. Mr Silverstein and Mr Apostoloff statements were made in their capacities as directors of Glen Ora. They were not called to give evidence and Glen Ora tendered their statements as part of Glen Ora's submissions.

1. Mr Proitsis focused his assessment on the modified connection application. He does not take issue with the conceptual design for the water mains proposed in Munro Avenue. He considers that the conceptual design is broadly acceptable for the purposes of a connection application.
2. However, Mr Proitsis did take issue with the implementation of the works in the modified connection application. In his opinion, for a private developer to own and maintain roads for a period as long as 25 years without an owners corporation during which a significant area of new industrial development would be anticipated, is highly unusual and may have risks associated with the long term maintenance and condition of the roads which could ultimately present difficulties for access to GWW assets.
3. Mr Proitsis relies on the Manual which does not allow GWW water mains to be located within privately owned land and which requires all water mains for owners corporation developments with private roadways to be privately owned plumbing assets. He also relies on the Water Supply Code which require all GWW water mains to be only located within public road reserves.
4. Mr Proitsis accepted that whilst it is open to GWW to consider an alternative proposal, he does not consider this connection application suitable for the exercise of that discretion. It is 'highly unusual' and does not demonstrate how it appropriately manages the risks to GWW of having its assets in private land. It contains insufficient information to mitigate the risks associated with the long term maintenance and condition of the roadways (and therefore access to GWW assets) and to allow the exercise of discretion in favour of the connection application.
5. Mr Proitsis identified the key missing information as:
   • The easement arrangements, including where the easement will be, what form it will take, how wide it will be, and what conditions the easement may have.
   • Elements of the road design and road drainage design, which are important for the assessment of the impact of a burst/leak that could occur on the water main in the future.
   • Information to demonstrate that any road maintenance that is required will be carried out over the extended period, including the design life of the road pavement, particularly subject to industrial traffic loading.
   • The terms of financial liability of the private road owner to carry out any road maintenance that may be required.
   • The terms of the proposed transfer of the assets from Glen Ora (or successors) to the Council, including a clear agreement with timeframes, depreciated asset condition assessment criteria, and any other conditions for transfer.
   • Evidence that the Council is supportive of the proposed arrangements for road construction, maintenance and future transfer of ownership.
   • The process for lot owners to connect to the water main including how lot owners will seek to be connected to the water main, who they are required to seek connection from, and how those connections will be made by a contractor or plumber in the privately owned land.
6. We accept Mr Proitsis' expertise in technical aspects of the design and construction of the infrastructure in the plans, but we are cautious as to whether that expertise extends to the same degree in relation to implementation risks. Some of those risks relate to road construction, drainage, depreciation, liabilities, re-sheeting costs, owners corporation activities, assumptions about industrial activities and vehicle types for which Mr Proitsis does not appear to have the same degree of knowledge and experience.

1. Mr Silverstein is a director of Glen Ora. He has had day to day management of Glen Ora's efforts to promote development of the estate.
2. He exhibited 14 types of documents to his statement dated 3 December 2025. To his statement dated 14 December 2025 he exhibited:
   • correspondence that Glen Ora received from a lot owner in the southern part of the estate objecting to the creation of an owners corporation;
   • engineering plans relating to drainage; and
   • a signed deed of variation for subdivision works on land to the east of the southern part of the estate that is not owned by Glen Ora.
3. GWW did not oppose tendering the documents in the two statements. We have considered them in determining this proceeding.

1. Mr Apostoloff is a co-director of Glen Ora. His statement dated 3 December 2025 states he believes Mr Silverstein's statement to be correct. He also states that he was with Mr Silverstein when he drove into 'Marshall Avenue' (sic, Street) from Berkshire Road on 1 December 2025. Marshall Street is in an industrial area about 600 metres south of Munro Avenue. He says 'Marshall Avenue' had a 'loose stone' surface, had no drainage but contained a fire hydrant.
2. Mr Apostoloff's statement that it is not unusual for a Sunshine North industrial estate to have reticulated water but no sealed road or drainage has no probative value in determining this proceeding.

1. Our ultimate finding that the connection application (including the informal modified application) is unresolved and should not be approved.
2. We accept that an unresolved application might be capable of rectification with conditions for consent. We are unable to fix Glen Ora's proposed conditions (to which we have referred) given the extent of lack of resolution and uncertainty about the form and effect of those conditions.
3. We record that GWW, in response to concerns about lack of resolution, withdrew its support for the easement option and only supported the vesting option.
4. We would not grant consent that included conditions consistent with the vesting option because Glen Ora submits that it would defeat the commercial basis of its proposal and that it would not act upon a consent in accordance with the vesting option.

1. The reasons for our ultimate finding are as follows.

1. We accept Mr Proitsis' opinion that the modified connection application:
   • is 'highly unusual', particularly in that it proposes location of authority assets in private property throughout such a large area of industrial development as in this estate, and particularly if there is no owners corporation;
   • is contrary to policy in the Manual and Water Supply Code and this non-compliance is the 'starting point' for assessment;
   • includes potential for risks, including relating to maintenance, that Glen Ora has not adequately addressed; and
   • does not warrant the exercise of discretion available under the Water Supply Code to grant consent.

1. Glen Ora's reliance on the modified connection application weighs against approval. It is a small version (said to be 'stage 1') of the original application. It emerged well after Glen Ora lodged the review application and relatively close to the hearing. We doubt we could formally substitute it for the original application.
2. It appeared a 'rushed' modification because:
   • Glen Ora told GWW in November 2025 and early December 2025 that it now wanted consent to provide water infrastructure to supply only 35 lots. It was not until mid December 2025 that Glen Ora corrected this to 32 lots but did not clearly identify those lots.
   • Glen Ora's relied on plans that showed the provision of services to more than the 32 lots that Glen Ora was intending to service. These plans showed services being provided to additional lots in West Avenue (see figure 4).[31]
3. It appeared that Glen Ora had insufficient time to get the Council, the rail authorities, the Commonwealth and any lot owners to file support for the modified connection application.
4. We were left doubting how, if it were approved, the modified application would affect consideration of later stages of Glen Ora's overall plans. We are unsure how implementation of stage 1 would affect prospects for later stages and how it might affect lot owners in the estate outside stage 1 during and after implementation of stage 1.

1. We accept Mr Proitsis' opinion that there is no precedent for the easement option, involving water authority assets in common property managed by an owners corporation, in an industrial area of the scale of the estate in this proceeding.
2. In his experience, the discretion to grant approval for water mains to be located within an easement in private land has been limited to a relatively small number of lots or a short length of assets where there is an owners corporation and the development is of a residential nature. He said that in those applications the developer would provide the water authority with sufficient information to address any concerns.
3. At the hearing, GWW formally withdrew its support for the easement option and would now only support the vesting option. Glen Ora submitted that GWW should not be able to withdraw such support because Glen Ora relied on GWW's predecessor (City West Water) confirming in writing to Glen Ora on 21 February 2020 that it would not require an owners corporation under an easement option.[32] We give the 2020 advice little weight. What is relevant in this proceeding is what GWW's submissions are for this connection application.
4. Glen Ora's written submissions strongly opposed requiring an owners corporation under the easement option mainly because it believed it would be impossible to get the agreement of all lot owners (in either the original or modified connection application) to create an owners corporation and to accept responsibility for roads and services in common property.
5. Glen Ora caught GWW by surprise at the hearing when it changed its opposition to creating an owners corporation. Glen Ora's oral submission was that it had now spoken to an unidentified consulting land surveyor who advised Glen Ora that it could create a limited owners corporation on registration of a plan prepared by Glen Ora and that registration of such a plan would not require lot owners' consent. Glen Ora now does not oppose the easement option with the creation of an owners corporation.
6. This was a submission 'on the run' and was not supported by written submissions or evidence. GWW was unable to respond. Glen Ora was unable to assist with our questions, such as whether what would be the land affected by the plan and whether Council or GWW would need to certify or consent to the registration of such a plan.
7. Among other reasons, the lack of resolution does not enable us to further consider granting consent on the basis of the easement option and creating an owners corporation.

1. As we have stated, section 305B of the Water Act requires us to take into account the planning scheme.
2. GWW and Glen Ora tendered several decisions of the Tribunal and the Supreme Court that have referred to this section. It is unnecessary to cite them all.
3. In Stanley Rural Community Inc v Stanley Pastoral Pty Ltd,[33] the Court said:

The legislative schemes provided for by the Water Act and the P & E Act are not mutually exclusive. So much is clear from the terms of s 305B of the Water Act. That section provides that when hearing an application for review of a decision under the Water Act, the Tribunal must take into account any relevant planning scheme. Section 305B supports the conclusion that the provisions of the Water Act are qualified by any relevant planning scheme.[34]

1. We do not take the Court to be saying that the 'qualification' extends to a conclusion that consent under section 145 of the Water Act must be refused if the works in a connection application are prohibited under a planning scheme or those works require permission under a planning scheme that has not been sought or has been refused. Such a qualification is not found in the text of the section.
2. So, how should the Tribunal go about 'taking into account' a planning scheme? We would take the following approach.
3. First, if the works in a connection application are permitted by a planning scheme or are consistent with or would facilitate the future use and development of an area as may be expressed in planning policies in or under the planning scheme, the Tribunal should not hesitate to grant consent on planning grounds.
4. Second, if the works in a connection application are:
   • prohibited by a planning scheme;
   • subject to the grant of permission under the planning scheme that has either not been sought or been refused; or
   • are inconsistent with the future use and development of an area as may be expressed in planning policies in or under the planning scheme;

the Tribunal should take a cautious approach in the grant of any consent.

1. GWW and Glen Ora made submissions about how we should take into account the planning scheme, but we did not have the benefit of participation in the hearing by the Council, as responsible authority for the planning scheme, or the benefit of expert planning evidence.[35]
2. We will not refer to all potentially relevant provisions in the 'Purpose and Vision' and 'Planning Policy Framework' parts of the planning scheme that GWW and Glen Ora brought to our attention.
3. It suffices to state that the estate is in an 'industrial and employment area',[36] in the a 'Solomons Height Transitional Precinct',[37] in a 'habitat connectivity corridor' adjoining the Maribyrnong River,[38] in a 'key environmental assets' area,[39] and in the Sunshine National Employment and Innovation Cluster' ('NEIC').[40]
4. In a transitional precinct, it is policy to support development 'as desirable locations for vibrant and diverse industries and world class businesses' but that '... in the long term may not be suitable as industrial or employment areas'.[41]
5. The NEIC covers a large area, including the Sunshine activity centre. The draft framework plan for the NEIC[42] ('framework plan') is neither an incorporated document nor a policy document in the planning scheme, so has limited weight as a matter to take into account.
6. The framework plan includes the estate in a 'Solomons Height Investigation Area' and refers to its nationally significant grassland patches. The 'long term vision' is to protect its environmental significance when that is resolved a 'land use plan will be needed to enable integration between existing industrial areas to the south with the developing River Valley residential estate to the east'. A 'long term action' is to prepare a structure plan for the precinct ...'.[43]
7. We draw from these provisions that the planning vision for the estate is presently unclear. The means to protect the nationally significant environmental values needs to be resolved before a structure plan will be prepared. We expect that the structure plan would identify at least parts of the estate may be unsuitable for industrial development.
8. This is consistent with what the Council has posted on its website about the estate:

About the Solomon Heights Precinct

...

The Precinct was originally created as a residential subdivision in the 1920s and rezoned to industrial in the 1940s. It has remained undeveloped and unserviced since the 1920s and includes 433 privately owned lots.

There are a range of issues that impact the Precinct including:

• it contains critically endangered flora and fauna species
• it is impacted by a number of Overlays and buffers which restrict land use and development
• it has limited road access.

...

Council received a report about the Precinct at its Ordinary Meeting on 10 December 2019 which included the following points:

Council acts as the Responsible Authority and Planning Authority, and does not have a role in leading any development proposal for the Precinct

Council is not currently seeking to change the Industrial 3 Zone that applies to the Precinct

Council will continue to advocate to Federal and State Governments, and other entities, about the environmental values of the land and the need to achieve an appropriate outcome

Council is pursuing the development of Industrial Design Guidelines with the intent that a planning scheme amendment is prepared to incorporate these into the Brimbank Planning Scheme. These would be used to assess future development applications in industrial precincts.

Council will consider private proposal/s about the roads in the northern part of the Precinct, and any other private proposals it may receive, and commission further advice, subject to budget approval, to facilitate this consideration.

Council will continue to engage with government and other entities about Solomon Heights, and opportunities associated with planning for the Sunshine National Employment and Innovation Cluster and Sunshine Priority Precinct.

Council will continue to advocate to the Federal and State Governments and other entities to achieve an appropriate outcome to protect environmental values of the Solomon Heights Precinct.

1. In the underlined passage (above), the Council states it is willing to consider road development in the 'northern part' of the estate, which we take to exclude the southern part of the estate in this proceeding. We will refer to the Council's statements about construction of the road in this proceeding later in these reasons.
2. Turning to the controls in the planning scheme, we observe that the estate is relevantly in an Industrial 3 Zone ('IN3Z') and three overlays apply including the Environmental Significance Overlay Schedule 3 ('ESO3').
3. The statement of environmental significance and environmental objectives to be achieved in ESO3 are as follows:

Statement of environmental significance

The Solomon Heights area contains 14.4 ha of indigenous vegetation cover, of which 14.2 ha is Plains Grassland and 0.2 ha of which is Basalt Escarpment Shrub land. The site supports Nationally, State and Regionally significant flora. All indigenous flora at the site is considered locally significant. The Solomon Heights Grasslands are Nationally Significant as 75 plants, or an estimated 2.1 to 3 percent of all wild individuals, of Pimelea spinescens are found within the study area. The Plains Grassland vegetation type is vital habitat for this species, as it does not occur in any other. The study area contains an estimated 0.6 to 0.8 percent of all remaining Basalt Plains Grassland.

Environmental objective to be achieved

To protect population or communities of native plants and fauna of national, State or regional (ie: within the Greater Melbourne Region) significance, consistent with the principles and requirements of the Environment Protection Biodiversity Conservation Act 1999 and the Victoria Flora and Fauna Guarantee Act 1988.[44]

1. An extract of the ESO map is at figure 5, below, and it shows that significant parts of the estate, including the southern part in this proceeding, a significant part of the 32 lots in the modified connection application, and significant parts of Munro Avenue are all in ESO3.

Figure 5 Extract of ESO map. Source: Brimbank Planning Scheme

1. Under IN3Z and ESO3, permission is generally required for buildings and works. GWW and Glen Ora submitted they were satisfied from inquiries of the Council that no permission had been granted to develop land in the estate.
2. Relevantly, no permission would be needed under IN3Z and ESO3 to construct the works in the connection application.[45] However, GWW and Glen Ora accept that permission is needed under clause 52.17 of the planning scheme to remove native vegetation for the works in the connection application. No permission has been sought or granted for this removal. Accordingly, if consent were to be granted for the connection application, it might not be able to be acted upon if permission to remove native vegetation was refused.
3. We draw from the planning scheme that:
   • the development of the estate is on a long term 'hold' until environmental protections are resolved and a structure plan is then prepared and approved which may significantly restrict development in the estate; and
   • planning permission is needed to remove native vegetation for the works in the connection application and such permission has not been sought or granted.
4. Accordingly, the planning scheme does not currently give strong support for the grant of consent in this proceeding.

1. The works in the modified connection application includes road and drainage construction.
2. As we have stated, Glen Ora seeks consent subject to two relevant conditions. The first condition is that the Council supports the road and drainage construction plans on Glen Ora's land in Munro Avenue. The second condition is that, as the road may not be vested in the Council for 25 years under Glen Ora's arrangements, Glen Ora would be responsible for maintaining the road (including any 're-sheeting' of its surface) for 10 years. We characterise these conditions as fundamental.
3. The formal attitude of the Council to these conditions is unknown. There is no record of its approval of the plans. There is no record of the Council being prepared to accept Munro Avenue as a public road at some time in the future.
4. Glen Ora tendered an email dated 7 October 2025 that it received from the Council that is the latest document from the Council that was brought to our attention about road construction. The email from a member of the Council's engineering staff states:

I am responding in relation to your question, which we interpret as being: Is Council prepared to build the roads within Solomon Heights estate and recover the costs via a Special Rate / Charge Scheme repaid over 10 years, commencing 5 years from the date of transfer of ownership of the roads to Council?

As an initial response, I note;

• It would be unusual for Council to implement a Special Rate Charge for the provision of civil infrastructure in a private development site; ordinarily such infrastructure would be provided by the developer and transferred to Council (for consideration) if they chose to have the road vested as a public road.
• If a development chose to have a road vested to Council as a public road, then the road must be constructed to Council standards and in accordance with Councils Engineering Guidelines and Specifications.
• Officers note there are barriers to construction of roads in this area, which require resolution, including:

The Environment Significance Overlay and environmental matters of national significance preventing clearing of land.

Removal of contaminated materials on site.

The support of relevant authorities, such as utilities, the EPA and any other stakeholders, and the potential cost impacts.

On the basis of the above, Council is unable to agree to the approach proposed in your correspondence. In principle however, Council is not against accepting road assets already built in a private development site, where they have resolved outstanding issues such as the above.

1. The first thing we observe about this email is that it responds to a special rate/charge scheme that is not proposed in the connection application or modified connection application. It also does not refer to or support the road construction and drainage plans in the modified connection application. We characterise the remarks as initial officer-level comments and we would caution against formally attributing them to the Council.
2. Although the email states that the Council 'in principle ... is not against accepting road assets built in a private development site', it refers to three significant 'barriers' requiring 'resolution' before road construction could be supported.
3. In conclusion, the works in the modified connection application require complementary road and drainage works. Whether the plans in that application are satisfactory and could be acted upon is uncertain.
4. We would not support the vesting condition without knowing if it were acceptable to the Council. More fundamentally, we would not include the condition in any event because we do not consider it to be a lawful condition for a consent under section 145. In summary, we do not consider it reasonably relates to the purpose of the discretion.
5. On the question of maintenance (including re-sheeting) of the road while it remains in private ownership, we would not include the bank guarantee and arbitrator appointment conditions. First, as a matter of substance it is unresolved. Second, we also do not consider it to be a lawful condition for a consent under section 145 for the same reasons.

1. It is apparent that the 2015 and 2021 connection applications included works to sewer the estate. The connection application in this proceeding does not include sewerage works.
2. We agree with Mr Proitsis that if part of the estate is ultimately approved for industrial development, the nature and scale of the industry is relevant to determining the disposal of wastewater. Without a sewerage system, we do not see how on-site disposal of wastewater would be satisfactory. Uncertainty about disposal militates against the grant of consent.

1. We have referred to the uncertain or unknown views of the Council and the Commonwealth to the connection application. We also do not have any indication of the views of rail authorities, State environment agencies or lot owners.
2. While the need to consider the views of these stakeholders is not mandated under the Water Act, the views would assist in resolving the uncertainties with which we have struggled.

1. As we have stated, the connection application is unresolved.
2. Consequently, the connection application is inconsistent with the relevant purposes of the Water Act. It does not provide 'responsible and efficient water services suited to various needs and various consumers'. It would not 'promote the orderly, equitable and efficient use of water resources'.
3. The planning scheme currently, in effect, cautions against water supply works and resulting road construction and industrial development of lots in the southern part of the estate (including the 32 lots in the modified connection application).
4. We acknowledge that there are longstanding difficulties with the development of the estate. These difficulties are interrelated and may, as submitted by Glen Ora, be causing a 'logjam' as issues may be unable to be separately resolved.
5. We discern that Glen Ora has chosen to advance this connection application as some sort of circuit breaker to the difficulties. Our role is not to solve the longstanding difficulties. Our task is to only determine the review of GWW's decision on the connection application. With this focus, we do not support the modified connection application. We will affirm GWW's decision.
6. GWW has foreshadowed an application for an order that Glen Ora pay its costs in this proceeding. We will make appropriate procedural orders for an application.

[1] The submissions and evidence of the parties, the 1720-page Tribunal Book, the documents tendered during the hearing with our leave, and the documents on the Tribunal's file that the parties filed before filing the Tribunal Book (including statements of grounds and contentions have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Glen Ora described its scheme as a private 'embedded [electricity] network' for which the Victorian Essential Service Commission confirmed on 24 November 2025 that Glen Ora was registered for a 'VR5/VNR5' reporting under General Exemption Order 2022 and for which the Australian Energy Regulator had granted an exemption on 1 July 2023 from the need for Glen Ora to register as a network service provider (Tribunal Book pp 941-944).

[3] Glen Ora also did not tender information about those terms and about consultation in this proceeding.

[4] The instruments for these protections include the Brimbank Planning Scheme (Environmental Significance Overlay Schedule 3 and controls over the removal of native vegetation) under the Planning and Environment Act 1987 (Vic) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

[5] Glen Ora did not tender a document supporting these submissions.

[6] GWW submitted that those consents were granted on the factual misunderstanding that Glen Ora owned all the lots in the estate. Glen Ora submitted that GWW ought to have known of the true situation by the time of the 2021 application because it was given a copy of the transcript and judgement of the Supreme Court in the proceedings concluded in 2018.

[7] Glen Ora tendered a notice from the EPA to Glen Ora dated 15 July 2025 that revoked the EAN.

[8] Planning permit P295/2024, issued on 28 August 2024 (Tribunal Book p 548).

[9] The application was numbered LND/25/00364 and comprised Glen Ora's email dated 20 March 2025 (Tribunal Book pp 9 & 619).

[10] These are plans prepared by Anthony Moodie & Associates drawing nos. LND/15/1448/101, LND/15/1448/102 to LND/15/1448/107 (inclusive) (all dated 19 January 2016) and a plan prepared by GWW drawing no. LND/21/01383 entitled 'Development Servicing Solutions - Water Supply Layout Plan' (dated 21 December 2021). These plans were included in the Tribunal Book at pages 621-628. We observe these drawings were part of Glen Ora's two earlier applications in 2015 and 2021.

[11] We infer that Glen Ora did not mean 'all the roads in the estate' but 'all the roads in the southern part of the estate in the connection application', being parts of Munro Avenue, West Avenue, Burwood Avenue, Auburn Avenue, Vermont Avenue, Elwood Avenue, Penna Avenue, Rankine Avenue and Whitehill Avenue.

[12] This item is unclear, but we will proceed on the basis that 'all roads in the estate' was intended to mean parts of the nine roads in the southern part of the estate.

[13] Again, we will proceed on the basis that 'the private road network' is parts of the nine roads in the southern part of the estate.

[14] In December 2025, after GWW decided the connection application, GWW updated the Land Development Manual.

[15] Glen Ora email dated 20 March 2025. We will proceed on the basis that inclusion of 'sewerage' works was not intended to be included in these arrangements because the plans in the connection application include no sewerage infrastructure.

[16] The decision refers to the land subject to the works; that the application is for 'a 440-lot industrial development'; that Glen Ora was required to provide further information which GWW states was not provided; and that Glen Ora had rejected both of GWW's options (Tribunal Book p 1244).

[17] Glen Ora specified 'Greater Western Water' as the decision maker. 'Greater Western Water' is a trading name for the 'Greater Western Water Corporation'. The Tribunal requires parties to be legal entities. We have therefore amended the name of the decision maker.

[18] Plans prepared by Moodie & Associates drawing nos. 17 21 22 CO1 to CO25 (25 sheets) (Tribunal Book pages 1137 to 1161).

[19] Plans prepared by Moodie & Associates drawing nos. LND/21/01383 WO1 Rev D, WO2 Rev D, WO3 Rev D, WO4 Rev D, WO5 Rev D, WO6 Rev E, WO7 Rev E. These plans were included in the Tribunal Book at pages 1335 to 1341. We observe these drawings were part of Glen Ora's earlier application in 2021.

[20] The area in the original connection application includes the streets and lots to the north of the 'extent of works' area shown on figure 3 in what we have described as the southern part of the estate.

[21] Figure 3 also shows the remaining part of southern part of the estate that was included in the original connection application. We also observe that figure 3 erroneously excludes the railway land beneath which the works would be extended to connect to GWW's assets in Knight Avenue.

[22] Those lots are shown as lots 54, 55 (2 lots), 56 (2 lots) and five unnumbered 'future lots'.

[23] See eg the reasoning of the Supreme Court in Secretary, Department of Environment, Energy and Climate Action v Hanson Construction Materials Pty Ltd [2023] VSC 353.

[25] In section 18 of the application form, Glen Ora states the address of the land to which the decision applies is '57R Munro Avenue (Lot 1 R1 PLN 76219) and 87R Munro Avenue (Lot R3 on PLN 10467) in Sunshine North'. Glen Ora submitted that the Council identifies the street address of the land between the railway and Elwood Avenue as 57R Munro Avenue and east of Elwood Avenue as 87R Munro Avenue. The lot and plan details in the description shown in figure 2 are the relevant title particulars for the land in Munro Avenue. We agree with GWW's submission that the land in which works in the modified connection application are located is more accurately described as part of 57R Munro Avenue (not including the section west of lots 21 and 22 shown in figure 4) and part of 87R Munro Avenue (not including the section east of Vermont Avenue). There are 32 lots that Glen Ora intends to serviced by the works in Munro Avenue. 15 lots are attached to this part of 87R Munro Avenue and 17 lots are attached to this part of 57R Munro Avenue.

[26] It is unclear what Glen Ora meant by 'completion of trial', but we will proceed on the basis that it intended to mean the date of final orders in this proceeding that set aside GWW's refusal and that grants consent under section 145 of the Water Act.

[27] Water Act ss 1(c) and 1(h).

[28] Ibid s 305B.

[30] GWW points out that section 3.5 was amended in December 2025 and that it refused the connection application after considering section 3.5 as it was before it was amended. We do not consider ourselves bound to take into account the Manual as it existed when GWW refused the connection application.

[31] For example, those plans showed proposed water mains in part of West Avenue which was outside the area abutting the 32 lots.

[32] The advice stated ' ... the creation of an owners corporation is no longer CWW's preferred approach for the servicing of the area of the Solomons Heights Estate where Glen Ora owns the roads' (Tribunal Book p 919).

[33] [2016] VSC 764.

[35] Glen Ora submitted that Mr Proitsis' evidence was incomplete (and inferred that his opinions should not be accepted) because he did not consider the matters in section 305B of the Water Act. We reject that submission because expressing opinions about the matters section 305B was not within the scope of his expertise.

[36] Planning scheme cl 02.04 (context map)

[37] Ibid cl 02.04 (economic development map). Clause 02.03-6 provides that it is policy to encourages development in these precincts 'to be highly accessible and connected to public and active transport' but clause

[38] Ibid cl 02.04 (environmental and landscape values map).

[39] Ibid cl 02.04 (built environment and heritage map).

[42] Victorian Planning Authority 'Sunshine National Employment and Innovation Cluster - Draft Framework Plan' March 2017.

[44] Planning scheme cl 42.01 sch 3 cls 1.0 and 2.0.

[45] In IN3Z, a use in cl 62.01 does not require permission if it meets any requirements of cl 62.01. Use for a 'minor utility installation' does not require permission. A minor utility installation is defined to include 'land used for ... water mains'. Under cl 62.02, a requirement in ESO3 to construct works does not apply to 'buildings and works associated with a minor utility installation'.