For the Responsible Authority: Mr John Cicero, Solicitor of Best Hooper

For the Applicant: Mr P. Jewell, Planning Consultant

For the Objectors: Ms M.R. Hickey QC, Messrs W. Garner, P. Long and J. Kemp appeared in person

1. This proceeding arises out of the same basic facts as Proceeding 2000/27211. We need not repeat these matters here. This review application relates to the Responsible Authority, the City of Port Philip's determination to grant a permit for a single storey addition and double storey garage on Lot 2, 49 Robe Street, St Kilda.

2. Unlike the development considered in 2000/27211, this development would not if completed, entail any encroachment upon any common property in the subdivision of which the subject property forms part.

3. Ms Hickey who is the owner and occupier of Unit 1, submitted nevertheless that in the circumstances the issue of a permit for this proposed development was nevertheless illegal because Section 12(2) of the Subdivision Act 1988 implies the existence of all easements and rights necessary to provide:

(d) passage or provision of water, sewerage, drainage, gas, electricity, garbage, air or any other service of whatsoever nature (including telephone, radio, television and data transmission); or

(f) full, free and uninterrupted access to and use of light for windows, doors or other openings."

4. Similar easements were implied by Section 12 of the Strata Titles Act 1967. The Strata Titles Act was repealed by the Subdivision Act and Clause 2(e) of the Second Schedule to the Subdivision Act extinguished those easements and sub-clause (f) substituted the easements implied by Section 12 of the 1998 Act. Ms Hickey's submission is that the development proposed in this proceeding would interrupt access of light for the windows of her house which faces south. She submits therefore, that the permit sought in this proceeding should be rejected for the same reason as she says the permit sought in 2000/27211 should be rejected, namely that to grant it would be in violation of the terms and scheme of the Subdivision Act 1988.

5. We reject this submission. First, the development considered in this proceeding does not raise any issue of ownership. If Ms Hickey as the owner of Lot 1 has the advantage of certain easements implied by Section 12 of the Subdivision Act 1988 over Lot 2, the subject land, given the definition of "owner" in Section 3 of the Planning and Environment Act 1987 she is not to be regarded as "owner" of Lot 2, the subject site, merely because of possession of these alleged easement rights. Secondly, the implication of easements by Section 12 of the Subdivision Act extends only to situations where "the easement or right is necessary for the reasonable use and enjoyment of the lot or the common property and is consistent with the reasonable use and enjoyment of the other lots and the common property". To conclude that there would be an interference with an easement of light would require far more material than has been placed before us upon this preliminary issue. Even apart from the limiting words attached to the Section 12 easement to which we have just made reference, the very nature of an easement of light means that it is no guarantee of a full, complete and uninterrupted passage of light. It extends only to ensure "sufficient light according to the ordinary notions of mankind for the comfortable use and enjoyment of [the dominant tenement owner's] house as a dwelling house". See Allen v Greenwood [1979] 1 All ER 819, 825

6. The reasoning which led us to the conclusion that the issue of ownership of the subject site was a relevant consideration as to the grant or otherwise of an easement in Proceeding 2000/27211 has no application to title issues relating to more limited and incorporeal interests such as easements. In our view these are matters of the general law of property which can and should be vindicated in court rather than in the Tribunal. We accept Mr Cicero's submission to that effect.

7. Ms Hickey submitted that Section 52 of the Victorian Civil and Administrative Tribunal Act 1998 excluded the jurisdiction of the courts to deal with this matter. Section 52 is as follows:

"52. Limitation of courts' jurisdiction in planning matters

(1) The Supreme Court, the County Court or the Magistrates' Court does not have jurisdiction to hear, or continue to hear, or determine any proceeding in which a person bringing the proceeding brings in issue the matter of the exercise of, or the failure to exercise, a power under a planning enactment if--

(a) the Tribunal has jurisdiction to review the matter of the exercise of, or the failure to exercise, that power; and

(i) has not been the subject of a proceeding in the Tribunal; or

(ii) if it has been the subject of a proceeding in the Tribunal, has not been determined by the Tribunal; or

(iii) if it has been determined by the Tribunal, the time for appeal against an order of the Tribunal in the proceeding has not expired; or

(iv) if an appeal has been brought against an order in the proceeding, the appeal has not been determined.

(2) If the Supreme Court, the County Court or the Magistrates' Court is of the opinion that there are special circumstances that justify the hearing by the Court of a proceeding to which sub-section (1) applies, the court may direct that sub-section (1) does not apply to that proceeding.

(3) If a court determines a proceeding to which sub-section (1) applies but does not give a direction under sub-section (2), nothing in this section invalidates the decision of the court.

(a) Catchment and Land Protection Act 1994;

(b) Environment Protection Act 1970;

(c) Extractive Industries Development Act 1995;

(d) section 41 of the Flora and Fauna Guarantee Act 1988;

(e) section 185 of the Local Government Act 1989;

(f) Planning and Environment Act 1987 (except sections 94(5) and 105);

(g) Subdivision Act 1988 (except sections 38 and 39);

(h) section 56 of the Transport Act 1983 and regulations made under that section;

(i) Water Act 1989 (except section 19). "

8. It will be seen that the Subdivision Act 1988 is designated for the purposes of the statute as a "planning enactment". The effect of the provision is that where a person "brings in issue the matter of the exercise of, or the failure to exercise, a power under a planning enactment ... [and] the Tribunal has jurisdiction to review the matter of the exercise of, or the failure to exercise that power" the matter may not be brought to court save in special circumstances or after the Tribunal has made its determination. In our view there is nothing to be found in the Subdivision Act 1988 which authorises us to review the grant or otherwise of the planning permit here in dispute. We can and are engaged in the process of reviewing the exercise of Council's determination to grant the permit in accordance with the Planning and Environment Act 1987. This matter is referred primarily to the Tribunal and prima facie excluded from the Court's jurisdiction. There is nothing in Section 52 however that would disable a court from granting a clear quia timet injunction against any threatened interference with any of the easements implied by Section 12 of the Subdivision Act.

9. It may well be that it would be possible to obtain some declaratory relief under Section 149B of the Planning and Environment Act 1987 with respect to the easement issue. There is no such application current. More pertinently, such an application would be made in the non-review jurisdiction of the Tribunal and would therefore be irrelevant to Section 52 of the Victorian Civil and Administrative Tribunal Act 1998 and would create no bar to a court giving similar relief. See No. 2 Pitt Street Pty Ltd v Wodonga Rural City Council Authority (1999) 2 VPR 338 per Balmford J.

10. In our view the issue of the interruption or otherwise of the alleged easements should be left to the courts to determine. Obviously related issues may be canvassed in the Tribunal as part of the general consideration of the effect of the proposal upon the amenity of Ms Hickey's residence.

11. We will adjourn the matter for directions to consider its further conduct.