Planning; Planning and Environment Act List; amendment of easement; deletion of part of easement; previous creation of mutual right-of-way easements to create driveway over space between two neighbouring houses; mistake in relation to creation of easement in relation to one of the properties; Section 23 Subdivision Act; Clause 52.02 of Planning Scheme; approximately half of one easement of carriageway under pre-existing house, and behind fences; owners of "dominant tenement" had never had use of that part of the easement; application for permit under Clause 52.02 of Planning Scheme to enable proceeding under Section 23 Subdivision Act for removal of portion of easement under house and behind walls and fences; considerations relevant to the exercise of such discretion; distinction between private property rights and public town planning; creation of procedures and remedies in relation to private property rights (restrictive covenants and easements) by means of planning permit application; anomalous incorporation of private property rights into public planning; confusion caused thereby; distinction between "core" planning matters, "mainstream planning issues" and traditional planning matters versus planning matters extended by statute to include private property remedies disapproved of; duties of responsible authority and Tribunal where no guidance as to exercise of discretion in the shape of purposes, policies, application requirements and decision guidelines are provided, history of Tribunal having to discern for itself relevant considerations; distinction between bar to the existence of a discretion as compared to considerations relevant to the exercise in discretion; Section 60(2) and (5) Planning and Environment Act imposes bars to exercise of discretion to grant permit rather than specify considerations relevant to exercise of discretion where it exists; declining to exercise powers and responsibilities granted by statute on basis of dealing with property rights which are not part of "mainstream planning issues" disapproved; just and equitable to correct results of a mistake leading to injustice is relevant together with planning considerations in relation to amenity and streetscape.

KJ Barge & Associates v. Prahran City Council and Body Corporate - Strata Plan No. 1235, [1992] 10 AATR 345.

Upton v. Camberwell City Council, Marrone and others, [1994] 12 AATR 18 at 23

Michael Drapac & Associates v. Yarra City Council, (1999/20613)

Worle Pty Ltd v. Stonnington City Council, [2003] VCAT 1357

Focused Vision Pty Ltd v. Nillumbik Shire Council, Perkins and others, [2003] 15 VPR 154; [2003] VCAT 1393

Zullaphalla Pty Ltd v. Stonnington City Council, [1999] VCAT 200; Noted [2000] VPR 248

Swintons Pty Ltd v. Melbourne City Council, unreported (1993/527829 & 1993/68123) but noted or digested at [1994] 13 AATR 16, 1 Australian Local Government - Planning and Environment Digest 292

Ogrodnik v. Shire of Wellington, [1996] 17 AATR 41

Sections 4, 5, 6, 60(2), (4) and (5), 87(1), 88 Planning and Environment Act 1987

Sections 23, 24 & 36 Subdivision Act 1980

Clause 62 Schedule 1 and Schedule 109 Victorian Civil and Administrative Tribunal 1998

Clauses 52.02 and 52.06-3 Stonnington Planning Scheme

A. This application for review is granted and the decision of the Responsible Authority to refuse to grant a permit is set aside. A permit is granted for variation of the easement created by instrument B316592 by removal of the area marked D on the endorsed plan hereafter provided for and subject to the following condition plus the two conditions (to be renumbered as necessary) contained in the Notice of Decision to Grant a Permit issued by the Responsible Authority on 23 March 2004 with the first condition to read:

1. Three copies of a plan drawn to scale and with dimensions must be submitted to the responsible authority for approval. The plan must be in accordance with exhibit F7 tendered at the Victorian Civil and Administrative Tribunal hearing in application for review P975/2004. The plan must clearly depict the area, coloured yellow on the said exhibit, and marked "D". When approved the plan will be endorsed as evidence of its approval and will thereafter be the endorsed plan in relation to this permit.

B. The Responsible Authority is directed pursuant to Section 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order A above.

Ms. Tamara Brezzi, solicitor of the firm of Deacons Lawyers, appeared for the responsible authority. She presented written and oral submissions.

Mr. Garry Fitzgerald, barrister, appeared on the instructions of his clients for the applicants for review. He presented written and oral submissions and called his client, Christopher Francis Jordan, solicitor, as a witness. He gave oral evidence and adopted a statutory declaration.

Ms. Marita Foley, barrister, appeared on the instructions of Garland Hawthorn Brahe solicitors for the respondent/permit applicant, Jonathon Llewelyn Meredith-Smith. She called John Reginal Jennings and her client, Jonathon Meredith-Jones as witnesses. Each gave oral evidence and adopted written statement of evidence being a statutory declaration in relation to Mr. Jennings and an affidavit of Mr. Meredith-Smith. Ms. Foley indicated that she did not rely upon another statutory declaration of a Ms. Kathleen Mary Ashford, and that document was not thereafter referred to.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.82 of the Planning and Environment Act 1987 (PE Act) for review of a decision of the Responsible Authority to grant a permit.

Permit to vary a carriageway easement to delete part of that easement.

Residential 1 Zone under the Stonnington Planning Scheme

1 This case concerns the properties known as 62 Jordan Street and 60 Jordan Street, Malvern. These two properties front the eastern side of Jordan Street and they are side by side. They share a common side boundary. Number 62 is the northern most, and No. 60 adjoins its southern side boundary.

2 There is an Edwardian style house on each of the properties. There is a weatherboard house on 62 and a brick house on No. 60. It was suggested that the brick house has stood in its present position for approximately 90 years. Its style is consistent with that suggestion. In any event, it is clear that each of these houses has stood in its present position at all material times, and for decades prior to 1960.

3 There is a gap between the two houses. Each house is set back, by a modest distance, from the common boundary between them. Originally, and for many years, there was a boundary fence along the boundary enclosing the curtilage of each house from the other. The setback of each house from the common boundary, and the boundary fence, was sufficient to afford a walkway down the side of the house, but was insufficient for vehicle traffic. It is apparent that in 1961 the then owners of the respective properties decided to make a change in relation to the space between the houses. Instead of being occupied by a boundary fence, and by their respective walkways, it was decided to create a common driveway to be available to the occupants of both houses and to enable them to drive vehicles between the houses down to their rear open space areas behind their respective houses.

4 In saying these things, and the following findings of fact, I rely on the evidence given at the hearing, including, in particular, the evidence of Mr. John Reginal Jennings. His father, John Alexander Jennings, resided at No. 60 Jordan Street from 1936 to 1971. Mr. John Jennings resided there with him from 1936 to 1955, and thereafter lived there continuously from 1971 to 1976 when he sold the property to Katherine Mary Ashford.

5 The arrangement for a driveway between the houses was effected by the creation of neutral carriageway easements created by written instruments entitled "CREATION OF CARRIAGE-WAY EASEMENT" each dated 26 April 1961 and each registered at the Titles Office. These were mutual documents creating mutual easements. The owner of No. 62 granted an easement of carriageway over a strip of land 1.37 metres wide along the southern (common) boundary of 62 from the Jordan Street frontage for a distance of 89 feet, or 27.1 metres or thereabouts in metric measurements. At the same time the then owner of No. 60 granted a similar right-of-way in favour of the owner of No. 62 over a similar strip of land, also 1.37 metres wide, and of similar length, from the Jordan Street frontage along the common boundary.

6 Obviously, 1.37 metres is insufficient width for the passing of a motor car, but the two easements of 1.37, giving a total width of 2.74 metres is sufficient for that purpose. It is a fairly narrow way for a motor car, but sufficient for most cars to pass with care.

7 The effect of these mutual grants of way was that neither owner could obstruct the strip of over which he (they were both men at the time) had granted a right-of-way to the other because of the obligation to keep it clear. The result is that both sides must be kept clear and each could use the way, as to half because of the right granted by the other, and as the other half as owner.

8 The two rights-of-way ran back from the street frontage to a point approximately adjacent to the rear end of the house at No. 62. That house extended back further than the structure on No. 60, or at any rate, it does now. A car associated with No. 62 can pass down the driveway, and has a legal right to do so, to the end of the right-of-way enjoyed over No. 60 and from there can divert to the left into the rear yard of No. 62. Similarly a vehicle associated with No. 60 could pass down the driveway, and at its end, divert to the right into the rear yard of No. 60. There is now a galvanised iron shed constructed in the rear south-east corner of No. 62 used as a garage. There is a carport in the rear north-east corner of No. 60. Both these structures for the accommodation of cars are accessible, with a certain degree of difficulty, and calling for a degree of careful driving, from the driveway that I have described.

9 These properties were originally enclosed, one from another, and from the front street, by the common boundary fence between them, and by segments of front fence on the street frontage. Those segments of fencing were removed to make the driveway trafficable by vehicles.

10 No. 62 now has a high white painted brick wall across its frontage as far as the driveway with a return of similar construction running down the north side of the driveway to a gateway giving access to the front porch, and then back to the weatherboard house.

11 There is a somewhat similar arrangement in relation to No. 60. Its front garden is enclosed from the street, and from the driveway, by a low unpainted red brick wall. It was pointed out at the hearing that these bricks, although similar, appear to be of a slightly different style and colour to the brick forming the walls of the original house. I accept Mr. Jennings' evidence that this wall, where it runs beside the driveway, was constructed after the creation of the easement in 1961, but not later than 1963. I also accept that a wooden deck was constructed at the rear of No. 60 in the 1980s during the ownership of Ms. Ashford. Running along the alignment of the northern side of the house on No. 60 there is the low brick wall between the street frontage and the front wall of the house. According to the survey plan dated 13 September 2002, and tendered as Exhibit F7 at the hearing, this wall in fact extends by 0.03 metres into the road reserve. However, that is not important for present purposes. The front wall of the house at No. 60, on its northern side, is set back from the front street by about 4.3 metres. The northern side of the low brick wall is aligned with the northern side of the northern side brick wall of the house. The brick wall of the house then extends back in a straight line for approximately 15.1 metres where a timber wall of the house, also aligned with the brick wall, continues for approximately 3.4 metres. Thereafter there is a paling fence continuing on the alignment of the walls of the house for a further 3.9 metres or thereabouts to the eastern end of the mutual easements. At that point, the paling fence continues on, but at an angle deviated by perhaps 40 degrees to the south-east for about 3.6 metres where it meets the south-western corner of the carport.

12 The deck at the rear of the house at No. 60 extends right across its rear wall, except for a little gap between the northern edge of the deck and the paling fence aligned with the main northern wall of the house. The deck, along this part of its northern edge, is about 2.3 metres long so that it does not extend to the corner where the fence changes direction from what is effectively the south-east corner of the driveway toward the south-west corner of the carport.

13 The above description accounts for the circumstances, so far as relevant, at the time in 1996 when the applicants Mr. Jordan and Ms. McMahon purchased their property. I note that both these persons are legally qualified. They were aware of the easements of way, but unaware, until December 2002, of a complication that has given rise to the current dispute.

14 There is another circumstance, which I regard as irrelevant, but which I will mention as a by-way because of reference to it in the course of the hearing. At the time of the creation of the easements in 1961 the title to the land upon which No. 60 stands included, not only No. 60, but also the adjoining property to the south known as No. 58. This parcel of land, with the two houses upon it, has since been subdivided to provide a separate title for each house. The result has been that No. 58 has acquired a right of carriageway over that portion of No. 62 where the carriageway easement exists for the benefit of No. 60. In so far as I can discern the situation from the dimensions on the title documents tendered, it is a right-of-way over portion of No. 62 that favours No. 58, and that makes sense in all the circumstances. In effect, that right has been inherited by No. 58 by virtue of its pedigree as having originally been part of the land that constituted the parcel of land enjoying the right-of-way over portion of No. 62.

15 As No. 58 has now been subdivided off from No. 60, this right-of-way over portion of No. 62, though it may exist legally, is of no practical use to the owners or occupiers of No. 58. They have a legal right to drive up and down the carriageway if so minded. It is impossible to do so however, because No. 58 enjoys no right-of-way, as far as I can see, over any part of No. 60. The right of carriageway over No. 62 is only 1.37m wide. In any event there is no destination at the end of the driveway that they have any interest in, practically or legally. There appears to be no occasion for such driving along the way between 62 and 60, so far as the owners and occupiers of 58 are concerned, and no effective legal right to do so.

16 I think the purpose and intention of the owners at the time, in creating the mutual carriageway easements, is perfectly obvious and clear. The purpose was to create a driveway for the benefit of each of the properties to give vehicle access to their rear gardens where garages or carports could be provided so as to afford them off-street parking. This was to be done by each granting the other an easement of way 1.37 metres wide on either side of the common boundary.

17 However, I think it is equally obvious that an error has occurred in giving legal effect to the creation of the mutual easements of way. The evidence, including the survey plan, indicates that the easements created, or at least as depicted on the relevant certificates of title, have been misplaced to the south so as not to coincide, as intended, with the gap between the two houses. The easement 1.37 metres wide over portion of 62 is located within the gap between the two houses, but its northern edge, as depicted on the survey plan is separated by a gap in the order of 0.55 or 0.6 metres wide from the nearest portion of the side wall of the house on No. 62. This gap area is noted on the survey plan as being covered in gravel. The portion of the side wall of No. 62 extending furthest to the south is only about 1.9 metres long situated about half way down the side of the house. This protrusion is a bay window. On either side of it, and between the edge of the gravel and the main side wall on either side, there is a strip of garden.

18 It is obvious that people in respect of either house using the driveway as a carriageway have been utilising the gravel strip about 0.55 metres wide along the northern side of the easement for the purpose of a driveway. There is no sufficient space to get a car down the driveway without encroaching over the northern line of this northern easement.

19 It appears, on the basis of the evidence before me, that the creation of the easement in favour of No. 60 did not create a right to use that gravel strip. Whether a legal right to use that gravel strip as a carriageway has been acquired since by long user or prescription is not for me to say. That is a question beyond the scope of the present case and, I believe, beyond the scope of the jurisdiction of the Tribunal. As to the right of way over portion of No. 60 in favour of No. 62, approximately half of its width is, and always has been, located under the pre-existing brick house. The portion of this easement, depicted on the survey plan in orange as area C is 0.7 metres wide, located immediately along the northern side of the northern wall of the house and its extensions in terms of the low brick wall at the front and the paling fence at the rear. There are, in fact, four dimensions of width denoted along the length of this area C on the plan with the dimensions specified as 0.70, 0.67, 0.68 and 0.71 respectively. The area is given as 18 square metres. This can be contrasted with the area of area B on the plan, which is the carriageway easement on 62, but in favour of No. 60, and which is wholly within the gap between the two houses, where the area is 37 square metres.

20 The balance of the easement over No. 60 in favour of No. 62, depicted on the plan in yellow, and identified as area D amounting to 19 square metres is located under and the to the south of the low brick wall, the northern walls of the house and the extension thereof in the form of a paling fence (before the deviation). The result is that most of this portion of the easement is under the house, and always has been. Part of it is under the deck, and has been since the deck was constructed. All of it is enclosed, where not under the house and deck, by the low brick wall at the front and the paling fence at the rear.

21 Mr. Jordan and Ms. McMahon have never had access to, and have never used, or been able to use, any part of area D amounting to approximately half the width of the carriageway easement in favour of their land. They, and their predecessors on title, like the owners of No. 60, and their predecessors on title, have used the driveway, including part of the mutual easements and the gravel strip along the north side of the easement on their land in favour of No. 60.

22 All this came to light in or about December 2002 when the owners of No. 60 applied for a planning permit for some development at the rear of their property. It was then that Mr. Jordan and Ms. McMahon came to realise that their easement of way in relation to No. 60 extended beyond the space between the houses and the northern fencing in relation to No. 60. I am informed that the responsible authority, although determining to grant a permit for the proposal advanced by the owners of No. 60, sought to impose a condition preventing any obstruction of any portion of the easement in favour of No. 62.

23 Before going on to deal with the dispute in this case, I note that I am informed that this dispute is one of a number of disputes between the parties (not including the responsible authority) in relation to the space between the two houses. Apparently, Mr. Jordan and Ms. McMahon complain that there are illegal obstructions in area C of their right-of-way over No. 60, that is to say, the northern half of the right-of-way which is not under the house or behind the wall and fence. The edge of the gravel of the driveway, according to the survey plan, ceases close to the southern edge of area B, the easement over No. 62 in favour of No. 60. In the space between the houses, along the northern wall of the house on No. 60, there is a strip of vegetation noted by the surveyor as "AGAPANTHUS". Also, at one point, there is a protrusion into area C marked "HEATER".

24 Insofar as there are disputes between the parties other than the responsible authority in relation to agapanthus or the heater or other aspects of the space between the houses, I regard those matters as being beyond the scope of this case and I mention them here merely for completeness.

25 Mr. Meredith-Smith, the owner of No. 60, was dissatisfied with the result of the permit application in relation to the condition preventing development of the land within his fences, but affected by the easement. He therefore applied under cl.52.02 of the planning scheme for a permit that is a pre-condition to varying an easement under s.23 of the Subdivision Act 1988 (SD Act). Section 23 SD Act provides for a number of things including the variation of an easement. It provides for the variation of an easement by the lodgement of a certified plan with the Office of Titles for registration. However, it also provides that, if a planning scheme or permit regulates or authorises the variation of an easement the owner of the land burdened by the easement must, in accordance with the planning scheme or permit and the PE Act, lodge a certified plan at the Office of Titles for registration. Clause 52.02 of the planning scheme does regulate the variation of an easement to the extent of specifying that a permit is required before a person proceeds under s.23 SD Act. Clause 52.02 also contains several exemptions that are not relevant for present purposes. Section 24(1) SD Act provides that registration of a plan takes effect from the time the registrar of Titles records that the plan has been registered and s.24(2)(d) provides that upon registration any easement is varied as specified in the plan.

26 The permit application sought a permit for the variation of the easement affecting No. 60 to the extent of deleting from it the area marked D on the survey plan I have referred to being the portion of the easement that is under the house on No. 60, the portion of it between the street frontage and the front wall of the house enclosed by the low brick wall and covered by the low brick wall and the portion to the rear of the house enclosed by the paling fence aligned with the northern wall of the house as far as the eastern end of the easement.

27 The responsible authority, having received the permit application, gave notice of it, or required the giving of notice of it. That resulted in an objection being lodged by Mr. Jordan and Ms. McMahon. The responsible authority then considered the application and the objection and determined to grant a permit subject to two conditions. In accordance with the provisions of the PE Act it issued a Notice of Decision to Grant a Permit setting out its decision and the proposed conditions. That notice is dated 23 March 2004.

28 Mr. Jordan and Ms. McMahon then applied to this Tribunal under s.82 of the Planning and Environment Act 1987 (PE Act) to review the decision of the responsible authority to grant a permit.

29 It was indicated at the hearing before me that Mr. Jordan and Ms. McMahon no longer wish to contest the variation of the easement insofar as it involves the deletion of that part of the easement which is located under the house on No. 60.

30 However, they do wish to oppose the variation of easement insofar as it would delete the portion of the easement between the street frontage and the front wall of the house on and enclosed by the brick wall, and the portion of the easement to the rear of the house enclosed by the paling fence.

New Property Law Remedies That Utilised Planning Procedures

31 Before proceeding further it is convenient to observe something about the nature of this proceeding. Questions in relation to easements relate to property law. Indeed, they might be said to relate to the private law of property. The same can be said for restrictive covenants. Restrictive covenants are not the same as easements, but like easements they impose private property law restraints on the use of land encumbered by them by the imposition of rights in favour of other land. Where it is necessary to define or enforce these rights ordinary private actions can be brought before the courts seeking injunctions, declarations or whatever remedies are thought appropriate.

32 Until some years ago it was easy to drawn a clear distinction between such private property rights and the law in relation to them on the one hand and town planning law on the other. Town planning law is a species of public law created in the public interest and in which the public has an interest, quite apart from any rights of individuals that become involved in planning litigation. Planning legislation, principally in the form of the Planning and Environment Act and the various planning schemes (which are subordinate legislation), provide for planning law. The PE Act enables the creation of planning schemes and authorises them to prohibit, regulate or authorise various uses, developments or other matters or things in relation to land. Planning schemes are now reasonably complex documents imposing zones and overlay areas on land, and imposing control provisions that contain prohibitions or provisions that regulate the use or development or other matters in relation to land covered by such zones or overlay areas. Where a planning permit is required for a particular proposal, it is required because a planning scheme imposes that requirement, and authorises the responsible authority (and on review this Tribunal) to exercise a discretion in deciding whether the permit should be granted, and if so, whether it should be granted subject to any and what conditions.

33 I have said that this distinction between private property law and public planning law was clear and easy to discern until recent years when some legislative changes were made to co-opt planning administrative procedures to provide simplified procedures in relation to certain questions that really relate to private property laws such as the variation or removal of restrictive covenants and easements. This adoption of planning procedures, and the harnessing of them for use in relation to proceedings outside the scope of public town planning may have been convenient and expedient, but I have expressed the view that it is anomalous. I also think that it tends to blur or confuse the distinction that needs to be maintained between private property law on the one hand and public town planning on the other. It is nevertheless a distinction that needs to be borne in mind.

34 This situation would be less confusing if the distinction could be clearly maintained and the use of planning for new property law remedies could be clearly confined to planning procedures. Unfortunately there seems to have been an extension of the scope of town planning to take in those property law matters so as to utilise the convenient procedures. I have something further to say about this later in these reasons.

Duty to Discern Considerations Relevant to Discretion Where Not Provided in Planning Documents

35 I have another point to make about the evolution of town planning in Victoria. Under the Town and Country Planning Act 1961 (TCP Act), the forerunner of the present PE Act, there were provisions specifying the matters that could be controlled, prohibited or regulated by planning schemes. The equivalent in the present legislation can be found in ss. 5 and 6 of the PE Act, and the Objectives of Planning in Victoria and the Objectives of the Planning Framework found in s.4 of the Act. These objectives are broad in their terms. However, the planning schemes now contain an abundance of provisions, in some instances a super abundance, specifying the purposes and objectives of various zones, overlays and other provisions, setting out State and Local planning policies, application requirements and decision guidelines. All these things provide guidance for the responsible authority, and on review this Tribunal, in determining whether or not permissions of various sorts provided for under the planning schemes should be granted or not, and if so, on what terms as to conditions.

36 This was not always the situation. In the early 1970s planning schemes and interim development orders (which were an interim form of planning control similar to a planning scheme provided for under the TCP Act) frequently did not contain any of these useful guides as to purpose and policy. It was frequently necessary for a responsible authority, or the then Tribunal, to work out what the appropriate relevant purposes and policies might be before applying them in a particular case to a particular permit application. The nature and content of the actual control provisions often had to be studied to deduce the purposes and policies that lay behind them. For example, there are now many provisions spelling out the purposes of policies in relation to rural zoned land including protecting it from excessive fragmentation and the proliferation of rural houses not needed for farming purposes. Although these policies can now be read in planning schemes, they were well known in town and country planning long before such statements of zone purposes and planning policy were spelt out in words in the planning schemes. They were known because they could be, and were, readily deduced from the nature of the control provisions. For example, provisions prohibiting the subdivision of rural land into allotments less than a specified minimum area and/or the prohibition or regulation of the construction of further houses on farmland. They could be seen as aimed at preventing undue fragmentation of farming land, and the proliferation of rural houses, even without those propositions being spelt out in explicit purposes or policy statements.

37 Even apart from discerning planning policies that might be inherent in control provisions and, perhaps, the names of zones, the Tribunal of those days was often called upon to discern the relevant considerations from its knowledge and understanding of underlying principles and purposes of what was then commonly referred to as town and country planning. In fact many purposes and policies that now find explicit expression in planning schemes have their origins in, or are expressions of, planning principles and purposes identified and developed by the then tribunal. The Tribunal was (and is) an expert body expected to be versed in such matters.

38 Although provisions spelling out purposes, policies and guidelines have become familiar, in their absence it would still be necessary for a responsible authority, or this Tribunal, to work out what the relevant planning purposes and policies that are relevant when undertaking the task of exercising the discretion as to whether a permit should be granted or not.

39 The absence of such guidance does not, and never did, excuse the responsible authority from its duty to properly exercise its discretion when confronted with a permit application.

40 I will say something later as to how this applies to discretions now granted under the legislation in relation to questions that are properly categorised relating to private property rights.

Relevant Considerations in Easement Variation Cases - The Barge Questions

41 In relation to the present case, the responsible authority determined to grant a permit and maintained that position at the review hearing before me. In doing so its representative observed that there are a number of cases in relation to matters to be considered in assessing applications like this one under cl.52.02 of the planning scheme. It was observed that most of these cases refer to and adopt the 1992 decision of the Administrative Appeals Tribunal (AAT, forerunner of this Tribunal for these matters) in KJ Barge & Associates v. Prahran City Council and Body Corporate - Strata Plan No. 1235 [1992] 10 AATR 345.

42 At the time that case was decided s.23(1) SD Act was in operation. The then equivalent of cl.52.02 was cl.7-1.5(a) of the State Section of the planning schemes. The case was heard and determined by a legally qualified deputy president of the AAT. The Tribunal, at page 347, referred to cl.3-5.1 of the State Section of the then planning scheme which provided that responsible authorities should consider the interests of persons adversely affected by the removal or variation of an easement. That would appear to be a relevant consideration. Further down that page the Tribunal posed to itself two questions as follows:

How then does the Tribunal decide whether or not to grant a permit? The Tribunal is of the view that the following question should be asked:

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

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

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

These two propositions might be summarised as need and detriment.

43 The Tribunal then went on to determine that appeal by posing and answering those questions in the circumstances of the case before it.

44 The above quotation used the expressions dominant and servient. Lawyers commonly referred to dominant tenements and servient tenements in relation to easements and restrictive covenants. These varieties of constraint impose restriction on one piece of land in favour of another piece of land. Tenement, in these circumstances merely refers to the pieces of land involved. The dominant tenement is the land enjoying a right over the other, or servient, tenement. In the present case before me No. 62 is the dominant tenement in relation to the right-of-way created in its favour over portion of the land known as No. 60. No. 60 is the servient tenement, so far as that easement is concerned. Conversely, of course, No. 60 is the dominant tenement in relation to the easement of way or right-of-way that it enjoys over portion of No. 62. However, there is no dispute before me in relation to that second easement.

45 There was little, if anything, by way of purposes or policy to guide the Tribunal in how it should exercise the discretion it had as to whether to grant a permit for the variation of the easement in the Barge case. The only indication it identified was the need to consider the interests of people adversely affected by the removal or variation of the easement. In these circumstances the Tribunal did what I consider it was required to do, namely to seek to identify what would be relevant considerations to be taken into account in exercising its discretion. It should be observed that the variation or removal of a restrictive covenant was a question in relation to a private property right not relevant to the public in general, or to what has normally been understood to be town planning.

46 In identifying the two questions quoted above, and in then proceeding to answer them, the Tribunal did not specifically say that these two considerations constituted an exhaustive list, or that there could not be other relevant considerations, at least in relation to particular cases.

47 The Barge case has been referred to in a number of later cases. In some of them the two questions appear to have been treated as an exhaustive list of tests and thus the only things that could be relevant to the exercise of the relevant discretion. I think this is stating what was said in Barge more narrowly than the reasons in that case warrant and, indeed, too narrowly. I think the questions posed in Barge should be regarded as questions that are, or will at least normally be relevant, but I think it goes too far to try and say that they are to exclude other possible relevant considerations.

48 In Upton v. Camberwell CC, Marrone and others [1994] 12 AATR 18 at 23 a Tribunal constituted without a member with legal qualifications applied the Barge questions and referred to them as "the tests" as if there were, and could be, no others. I do not agree with that implication.

49 In Michael Drapac & Associates v. Yarra CC (Tribunal No. 1999/20613) the reasons in that case referred to Upton v. Camberwell, misnaming it as Putton v. D. Marrone, and also to Trident Resources Pty Ltd v. Bayside City Council (unreported, and without providing a citation). These cases were referred to as having followed Barge. In Drapac it was argued that the formulation of questions in Barge was too narrow and that consideration should be given, not only to the then current use or condition of the dominant and servient lands, but also the likely future use and future state or condition of the dominant and servient lands. The Tribunal observed that material detriment would not be satisfied where the alleged effect of retaining the easement was merely remote speculative or hypothetical.

50 In Worle Pty Ltd and another v. Stonnington CC [2003] VCAT 1357 (7 October 2003) the Tribunal again adopted the Barge questions referring to them as "the relevant tests".

51 In the current case the responsible authority maintained its view that a permit should be granted, and did so on the basis of the Barge questions. In doing so it considered the permit application as formulated, which included deletion of the part of the easement under the house. It only learned that opposition to the under house part was being abandoned after the hearing started.

Basis of Decision of Responsible Authority to Grant Permit

52 The responsible authority took the view that, on the evidence, the part of the easement marked D serves no current purpose as a carriageway easement because the land is occupied by the dwelling, and has been for a considerable time. Furthermore, it submitted, that the physical condition of the land does not indicate a need for part D to be retained as part of the easement, indeed it has never been available for use as a carriageway. Furthermore, as to whether the owners of 62 may suffer material detriment if the entire easement was removed, it was submitted that it cannot be said on any reasonable basis, that the owners will suffer material detriment in the use and enjoyment of their land if that part of the easement occupied by the dwelling was to be deleted.

53 Mr. Fitzgerald, who appeared on behalf of the applicants Jordan and McMahon referred to the possibility of Supreme Court proceedings to remove easements by doctrines of common law or other statutes. I do not regard those references as relevant to these proceedings before this Tribunal under the provisions I am concerned with.

Focused Vision Case - Property Law Remedies in Town Planning

54 He then referred to a recent decision of the Tribunal, presided over by a deputy president, in Focused Vision Pty Ltd v. Nillumbik SC, Perkins and others [2003] 15 VPR 154; [2003] VCAT 1393. He said that the Focused Vision case governs the disposition of this present one.

55 Focused Vision also concerned disputes between neighbours, and in particular a question as to the variation of an easement. There was a considerable debate, in that case, as to whether s.36 SD Act was the applicable legislation, rather than s.23 and cl.52.02 of the planning scheme. I respectfully agree with the conclusion reached in that case that it is the latter provisions that are relevant, and that s.36 SD Act is beside the point.

56 In that case the responsible authority was represented by two town planners. They referred the Tribunal to the Barge questions, asserting their relevance, but unable to identify their source. It is surprising, and unfortunate, that the other parties, represented by barristers, including one experienced in the field, were apparently unaware of Barge, and did not refer the Tribunal to it, or identify it as the source of the questions suggested by the town planners. As a result the Tribunal did not refer to Barge, or the subsequent cases that have referred to, followed or enlarged upon Barge. Late in the reasons there is reference to findings of fact that would be relevant to the Barge questions, and on the basis of those findings it appears that the ultimate decision was in line with Barge, but Barge itself was not considered or discussed.

57 The Tribunal, in Focused Vision, expressed itself as being a little perplexed at the task before it. This was principally on the basis that it recognised that an easement is a property right, and yet it appeared to be faced with a planning review case in relation to whether an easement should be varied. It was considered that this was strange, particularly as there was no indication in the planning scheme, or for that matter in other legislation, as to what would be the relevant purposes, policies or considerations relevant to the exercise of the discretion involved.

58 At page 36 of its reasons the Tribunal in Focused Vision made reference to a decision upon which I sat with Ms. Withers being Zullaphalla Pty Ltd v. Stonnington CC [1999] VCAT 200; noted at [2000] VPR 248. A passage from our paragraph 64 was quoted where we observed that s.23 SD Act appeared to be oddly worded. Zullaphalla contains a lengthy quotation from a yet earlier case on which I sat with Mrs. Monk namely Swintons Pty Ltd v. Melbourne CC unreported (1993/527829 and 1993/68123) but noted or digested at [1994] 13 AATR 16, 1 Australian Local Government Planning and Environment Digest 292 and [1994] 3 Environmental Law Reporter 130 94-169.

59 In Swintons and Zullaphalla the situation of questions of private property law being incorporated into public planning procedures was examined, compared and discussed in detail. I do not propose to go over all those matters again here. In those cases the particular area of property law in question was in relation to restrictive covenants, rather than easements, although the situation is analogous and, it might be said, similarly anomalous and confusing. Nevertheless, and whether anomalous or not, it is clear enough that Parliament by Act of Parliament has provided new remedies and new procedures to obtain new remedies in relation to restrictive covenants and easements by means of their somewhat artificial incorporation into town planning and its procedures. Although, as noted in Swintons and Zullaphalla, the scope of planning is to be determined by reference to the planning legislation, and it is open to Parliament to include what it sees fit in that scope, it is nevertheless clear enough that property rights as to restrictive covenants and easements are matters of property law and of a private nature that could not otherwise be classified as part of public planning law in which the public has an interest.

60 Be that as it may, if Parliament decides, and legislates for there to be remedies and procedures leading to remedies in relation to private property law questions, by means of town planning procedures, then that is the law, and it must be accepted. Focused Vision accepts that, and I respectfully agree.

61 I propose to refer in more detail to what was said in Focused Vision, because there is an aspect in relation to which I respectfully disagree.

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 (sic, regulating?) the use and development of the land which they own. How then can an easement be extinguished by planning permit as the present application supposes that it can be?

63 The answer to this question must be that if Parliament so legislates, then that is the law, whether or not the Tribunal finds it strange or considers it anomalous. It is not a question of whether the Tribunal considers the matter to come within the "core function of the planning system". If the scope of planning is expanded by Act of Parliament to cover things that had not previously been within planning "core" functions, or had not previously been within the scope of planning at all, that is beside the point. If Parliament legislates that a matter is to be henceforth part of planning, then it is, however ill its fitting there may be.

64 The Tribunal then goes on to consider the question of the comparative relevance of s.23 and 36 of the SD Act. In the course of doing so there is reference to a decision of Mrs. Helen Gibson sitting as a member of the Administrative Appeals Tribunal in Ogrodnik v. Shire of Wellington [1996] 17 AATR 41 where she concluded, at page 44:

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 the planning permit is first granted to create, remove or vary any such easement.

65 At paragraph 40 in Focused Vision the Tribunal continued:

40. There are no decision guidelines prescribed by the Scheme. The effect of these provisions [s.23 SD Act and cl.52.02 of the planning scheme] 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.

Easement Variation in Permits Compared to Residential Covenant Variation Permits

66 This is true, although the procedure has been available for a number of years, and parties have availed themselves of it in a number of cases starting with Barge in relation to easements, and a considerable number of cases over quite a number of years, in relation to restrictive covenants. Later in its paragraph 40 the Tribunal in Focused Vision continued:

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.

67 The Tribunal then continues in its paragraph 41 as follows:

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 will be unlikely to suffer -

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

(e) as a consequence of the removal or variation of the restriction.

68 Section 60(2) does require the responsible authority to be satisfied of those things in relation to some covenants, depending on whether they were created before or after 25 June 1991. Section 60(4) and (5) specify even more stringent requirements that the responsible authority must be satisfied of before it can grant a permit cancelling or modifying the other category of restrictive covenants. It is to be noticed that sub-sections (2) and (5) of s.60 PE Act are in the Act itself, and not in the planning scheme where purposes, policies, application requirements and decision guidelines are to be found. Although it is true that the Tribunal has to be satisfied as to the specified things set out in which ever is applicable of those sub-sections, they are not, in my opinion, analogous to purposes, policies, decision guidelines and the like that appear in the planning scheme. The purposes, guidelines etc. in the planning scheme are to guide the discretion as to whether the responsible authority (or on review this Tribunal) should grant a permit or refuse one, or if granting one as to what conditions (if any) should be imposed. They guide the exercise of the discretion. Section 60(2) and (5) do not guide the exercise of the discretion, but rather govern whether the discretion exists (or not) to be exercised. They represent a bar, or a partial bar, to the granting of a permit. They deny the responsible authority the discretion that it would have if those requirements are met. It is true that some of the requirements require the Tribunal to be "satisfied" as to various things, but if it is not satisfied as to their existence, then it has no discretion to grant a permit. On the contrary, it is barred from granting a permit.

69 That situation is more analogous to some provisions in relation to Division 3 of Part 4 PE Act which is the division in relation to the cancellation or amendment of permits by the Tribunal. That division is constituted by ss.87 to 94 inclusive of PE Act.

70 It contains a rather complex regime of provisions and requirements in relation to amendment or cancellation of permits by the Tribunal. Even when they are all otherwise satisfied, s.88 imposes a bar on the power to cancel or amend some permits in relation to developments that require planning permission. According to s.88(a) a permit cannot be cancelled or amended, if it relates to the construction of buildings or the carrying out of works, where those operations have been completed or, (by sub-section (b)) where the permit relates to other development of land unless it is at a time before that development is substantially carried out. There is no such restriction in relation to permits for the use of land.

71 Where the bars imposed by s.88(a) or (b) apply, the Tribunal is statutorily prevented from granting an amendment or cancellation. Where those restrictions don't apply, it is open to the Tribunal to exercise its discretion as to whether it cancels or amends the permit. It is not compelled to do so. Where the discretion survives, and is not barred, then the tribunal looks to the planning merits (as well as any other considerations that might be relevant) in determining how it will exercise its discretion. In this connection it looks, not to the Act, but to the relevant purposes, policies, application requirements and decision guidelines found in the planning scheme.

72 A somewhat similar situation applies in relation to s.87. Under that section the Tribunal has power to amend or cancel a permit (if not barred by s.88), if it considers that one or more of the grounds set out in s.87(1) is established. If no such ground is established, then the Tribunal does not have the power to cancel or amend the permit. If, on the other hand, the Tribunal considers that one or more of the grounds in s.87(1) is established, then it does have the power to cancel or amend the permit. It has a discretion in this respect. It is not compelled to cancel or amend, just because a ground is established. In exercising that discretion, as previously stated, it looks to the planning merits of the case, and to guide the discretion looks to the purposes, policies, decision guidelines and the like in the planning scheme.

73 So far as the removal or amendment of a restrictive covenant is concerned, although there are provisions that have created a set of administrative procedures utilising the planning arrangements similar to those applicable to the easements, s.60(2) and (5) do not really guide the discretion, where it exists. They merely determine whether or not the discretion is available. The responsible authority, or on review this Tribunal, is left at large to determine for itself what is relevant to the exercise of the discretion, once it is established that the power to grant a permit is not barred by those sub-sections.

Absence of Policy Guidance of Discretion in Easement and Restrictive Covenant Variation Cases

74 In this respect the situation in relation to restrictive covenants is similar to that in relation to the modification or removal of easements. As observed by the Tribunal in Focused Vision, there is no guidance as to the exercise of the discretion in relation to an easement in the planning scheme or anywhere else. In my opinion, on a true reading of the legislation, that is the same situation that applies in relation to restrictive covenants except that there are certain statutory bars that apply to the exercise of the power in relation to covenants that do not apply in relation to easements. In neither case is the responsible authority, or the Tribunal, provided with guidance as to the exercise of the discretion where it exists. It is left to work out for itself, with such guidance (if any) as can be derived from the circumstances as to what considerations are relevant and appropriate to the particular case. That is an exercise similar to the one required before purposes, policies and decision guidelines were included in the planning scheme, although in those days there were some times other planning scheme provisions, including the name of the particular zone or the nature of particular control provisions from which relevant purposes and policies could be deduced.

75 That was the exercise undertaken by the Tribunal in the Barge case and subsequent decisions following it.

76 The discerning of matters relevant to the exercise of the discretion is also required, as I have said, in restrictive covenant cases. It may be that, in some of those cases, the process has been taken somewhat for granted. In some such cases it may be that, by the time the criteria for determining whether the discretion exists has been determined upon, it has also become apparent that there is no reason why the discretion should not be exercised in favour of the modification or cancellation of the restrictive covenant being sought. Nevertheless, strictly the responsible authority or Tribunal has to determine firstly whether the restrictive provisions bar granting of a permit, and thus the exercise of discretion; and secondly, if they do not, then how the discretion should be exercised, and what matters should be taken into consideration in the exercise of that discretion in circumstances where the planning scheme and legislation do not offer guidance.

77 As the Tribunal in Focused Vision concluded at its paragraph 53 -

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 property right viz. an easement without any guidance or criteria as to the proper approach to adopt.

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 restrictive covenant 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 land owner 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.

79 For the reasons I have given, I do not think that the situation is any different, so far as the removal or modification of an easement is concerned, as compared with a restrictive covenant. I respectfully agree that to remove or modify an easement does affect a proprietary right. I respectfully do not think that it is to the point as to whether it arises in relation to a private neighbourhood dispute or not. I think that an attempt to create a distinction between "mainstream planning issues" and, presumably, non-mainstream planning issues is likely ultimately to lead to more confusion than enlightenment. It is not a distinction that I would wish to encourage, although I suppose I must recognise what have traditionally been town planning considerations and that private property right questions that have been, rather artificially, drawn into planning to create a new, presumably more flexible, means of relief. I therefore respectfully do not want to endorse the sentence saying that lack of connection to mainstream planning issues seems sufficient in itself to warrant refusal. Will that not always be the case? Yet planning has endowed the responsible authority, and on review the Tribunal, with this power and responsibility. I do not think it is for the responsible authority, or the Tribunal, to simply decline the responsibility and power thus given to them, or to adopt a position that amounts to that. I respectfully agree with the Tribunal in Focused Vision to this extent; I do not think it is appropriate to lightly extinguish or modify an existing property right, or indeed any existing legal right. There needs to be a good reason for doing so. A distinction can be drawn between creating a right by granting a permit on the one hand, and taking away an existing right, for example cancelling an easement or restrictive covenant, or for that matter, an existing permit, on the other. There needs to be good reason for doing so. You can call a good reason a "compelling reason" if you choose. However, to require a compelling "planning" consideration, if by "planning" is meant some preconceived and narrow category of "mainstream planning issue" as opposed to whatever is a planning matter according to the current legislation is not correct. Similarly, it is not correct to try and devise a distinction between "core" planning matters and other planning matters or traditional planning matters and property matters if the property matters have been legislated into the realm of planning matters. Furthermore, I do not think that the absence or paucity of explicit policy guidance is justification for declining to consider and exercise the power and responsibility granted by the statute.

80 In Focused Vision the Tribunal then went on to take account of other considerations including substantial detriment to be suffered if the application was granted. That appears, in effect, to revert to a Barge question. This furnished an additional reason, additional to easements not being "mainstream planning issues", for refusing to grant a permit. For my own part, I would regard those additional reasons as both sufficient and preferable.

81 Nevertheless, as previously stated, I do not regard the Barge questions as a closed and exclusive list. Furthermore, at their highest they are considerations. There may be other considerations. Even where they indicate refusal, they may be outweighed by considerations indicating the grant of a permit.

Application of Barge Questions and Further Considerations in This Case

82 In relation to the present case before me, the applicants for review have abandoned their case insofar as they resisted modification of the easement to delete the portion of it which is, and always has been, under the house on No. 60. However, they wish to continue to resist the modification insofar as it would remove the portion of the easement under and behind the low brick wall at the front, and under portion of the deck and behind the paling fence at the rear. The front area is about 4.4 metres x 0.67 metres, a total of a little under 3 square metres. The area at the rear appears to be about 3.9 metres x 0.66 metres, a total of about 2.57 square metres. The applicants for review have never had access to those areas, and have never been able to use them as part of the easement. They did not even know that the easement extended to those areas until 2002, some years after they purchased and occupied their property. I am satisfied that the agreement between the then owners to create the mutual easements by means of the written instruments of creation of easement to create a legal driveway accessible by the owners or occupies of both properties did not ever intend that land under the house on No. 60, or to the south of the extension of the line of the northern side wall of that house was ever to be part of the easement, or that the owners of No. 62 were to acquire a right of way over any such portions of land. It would obviously be absurd to create a right-of-way under an existing house where there was no intention to demolish it, and it is equally obvious that it was never intended to create a right-of-carriageway there. The error probably arose from assuming that the pre-existing boundary fence between the two houses was mid way, or approximately mid way between the opposing side walls of the two houses and that the fence was on the boundary between the two properties. The fence may have been in that position, but the boundary was in fact closer to the northern wall of the house on No. 60, and not mid way between the houses on the two properties. If the boundary and the fence had been at or very close to the mid line of the gap between the houses, then creating mutual rights of way of 1.37 metres one either side of it would, indeed, create a trafficable drive 2.74 metres wide. That is what everybody thought had been done until recent investigations prompted by a permit application for proposed development at the rear of No. 60.

83 It may be that the owners of No. 60 have acquired title by adverse possession to the land south of the now demolished boundary fence, but that is not a matter I need to go into.

84 I note that, if the easement of carriageway is maintained in relation to the area under and to the south of the low front wall, and that right is to be rendered exercisable on behalf of the occupants of No. 62, then it will be necessary to demolish the low brick front wall. Furthermore, to enclose the front garden, it would then be necessary to erect a new front wall or fence, to the south of the present one, and to the south of the southern edge of the right-of-way. This would mean relocating the wall by approximately two-thirds of a metre. Nevertheless, the house itself would continue to protrude by that distance to the north of the alignment of the new wall, and into what would appear to be a driveway. This would be a peculiar looking result, to say the least. There is nothing catastrophic about it but, in my opinion, it would be detrimental to the amenity of the immediate area, including both these houses, by producing a peculiar looking result and detracting, perhaps to a relatively minor extent but nevertheless detracting, from the streetscape.

85 I do not doubt that Mr. Jordan and Ms. McMahon at present have a legal right to an easement over this area. Same is true in relation to the area beneath the house. They apparently would like to exercise the right. However, the existence of the right does not determine whether it should continue. The whole purpose of this proceeding, and the application giving rise to it, is that Mr. Meredith-Smith is seeking, by the proceedings he is undertaking, to modify the easement and extinguish the right in relation to the land under the house, and under the south of the brick wall.

86 These existing rights, that Mr. Meredith-Smith wishes to delete, have arisen as a result of a fortuitous accident, and a mistake, and exist, in my view, contrary to the agreement and the intention of the agreement that gave rise to these easements in the first place. The circumstances are fortuitous so far as Mr. Jordan and Ms. McMahon is concerned, and unfortunate, so far as Mr. Meredith-Smith is concerned. If there is any value in the right, it is a fortuitous and undeserved accident arising from a mistake. Although a legally existing advantage, it is a legal advantage which, in my opinion, it would not be just and equitable for Mr. Jordan and Ms. McMahon to insist upon exercising. Furthermore, it is not a right that it would be just and equitable, in all the circumstances of the case, including its history and the fortuitous nature of the accident to maintain. I do not mean by this that a court might not grant injunctions to allow access to that area on behalf of Mr. Jordan and Ms. McMahon, if an injunction was sought. Such an injunction may, or may not, be granted. What I do mean is that it would be equitable and just, in other words fair, in all the circumstances to modify the easement to delete that area, as well as the area under the house. Furthermore, although to a minor extent, this will also produce a better town planning result in terms of amenity and streetscape.

87 I take the same view in relation to the area behind the house on No. 60, although the streetscape consideration is hardly relevant there.

88 It is certainly true that the driveway is narrow, and that there are difficulties about using it for that reason. The difficulties are a little greater when it comes to manoeuvring, toward the end of the driveway, to gain access to the respective garage and carport. Access would be more convenient if the driveway was wider. Its width is substantially dictated by the width of the space between the houses. There is no space to turn around so as to emerge from the driveway in a forward direction. This means that people have to back the length of the driveway, if they wish to have the advantage of an off-street garage or carport at the rear of the respective properties. All that is unavoidable, unless one or both houses are to be moved or demolished. I recognise some inconvenience in relation to opening garage doors if a car is halted close to the fence before turning into the garage. This might be obviated by stopping the car in the street, or on the crossing between the kerb and the building line, even if portion of the car protrudes into the driveway. That would mean walking down the driveway to open the garage door, with a reverse procedure to close it on emerging. I am unimpressed with a further argument that the widened area at the front is needed to prop the car in whilst putting little children into or removing them from the car. As far as I can see, that can just as well be done with the car stopped between the kerb line and the property line, even if part of the car protrudes to the east of the property line. These are minor inconveniences, substantially dictated by the position of the houses in relation to each other, but in relation to which there could be minor alleviation if the easement at the rear was to maintained. I say that although I think to be of any practical, or "material" use, this would involve demolition of the portion of the deck that protrudes into the easement. I do not regard the difference in this respect as being "material".

89 At paragraph 6 of his written submission Mr. Fitzgerald recorded the alleged detriments of his clients. He says that they would suffer practical detriments because of unsatisfactory access due to the encroachment of fences and decking (I leave aside agapanthas and the heater as not here relevant) and that they have suffered damage to their cars and house. I find the inconvenience to be due to the location of the houses and that the driveway has always been, and will continue to be, inconvenient although trafficable.

90 They claim legal detriment in that they will be unable to claim a legal right, never exercised or contemplated when the easements were created or they purchased their land, to make use of the front and back portions of the easements. I am not sure whether they would be successful in enforcing those legal rights, or whether Mr. Meredith-Smith might not have a legal right to claim ownership of that strip of the land south of the original position of the fence. I am confident that they would not be able to exercise the right in relation to the land under the house, unless the house was demolished. So far as the front is concerned the advantage is immaterial for the reasons I have given, and outweighed by the disadvantages I have mentioned. So far as the rear is concerned the advantages slight, and so far as the whole is concerned. I consider the loss to be fair in the circumstances, and the assertion of right to be inequitable and unjust for the reasons given.

91 It is also said that there is a financial detriment in that the applicants property will be worth less. No evidence to this effect was lead, and I am not prepared to speculate on the question. I do not know whether there would be any real change to the value of their land, and I note the countervailing consideration of the detrimental loss to the amenity of the immediate area and the streetscape.

92 The other detriment relied upon is a tactical one in relation to possible applications for permission for the further development of the rear of No. 60. I regard this as an ulterior consideration that should be disregarded. The purpose of a right-of-way is to provide a right-of-way. The purpose of this right-of-carriageway is to provide a carriageway. It is not to frustrate what might be otherwise legitimate planning permit applications. I do not regard this ulterior consideration as a legitimate or relevant one.

93 In terms of the Barge question, I do not think that there is any past or continuing need for the contested portion of the easement. So far as material detriment is concerned I do not find material detriment, except for a quite minor loss of potential and minor advantage in relation to the rear portion. I consider this to be considerably outweighed by the injustice that I consider would be involved in relation to maintenance of the easement over this portion.

94 The original agreement between the original parties who created the mutual easements did not involve, or at least was never intended to involve, any part of area D. They got what they bargained for without the inclusion of area D in the carriageway easement. The present owners of No. 62, when they purchased their property, again have got what they bargained for, without the inclusion of area D.

95 I consider that it is just, fair and equitable, in all the circumstances, for the deletion of area D from the easement effecting the land at No. 60. The abandonment of the claim in relation to the portion under the house is tantamount to admitting that, and recognising the absurdity of the claim in relation to the portion under the house. I think the same should apply to the portion in front and behind the house.

96 Mr. Fitzgerald, on behalf of the applicants for review also raised a number of technical and, I am afraid, unmeritorious points. They certainly did not go to the merits.

97 At the commencement of the hearing he argued that the matter could not proceed on the basis that the owner of 58 Jordan Street had not received notice of the application or the review. It will be recalled that No. 58 was once on the same title with No. 60. There has since been a subdivision separating those two properties. No. 58 retained the advantage of an easement of right-of-way over the same portion of No. 62 as is enjoyed by No. 60. However, these proceedings do not really affect that easement. Rather they concern the reciprocal easement over portion of No. 60. Although No. 58 was once part of the land burdened by that easement, it is no longer part of it. In any event, the easement that has a residual existence in relation to No. 58, and the whole driveway really, is of no practical relevance or use to the owners of No. 58. As previously stated, its only purpose would be a legal right to drive up and down it, with no legal right to access any destination at the end of the driveway. In the circumstances, I ruled against the submission that s.52 PE Act required that notice should have been given to that owner.

98 At the end of his case, Mr. Fitzgerald raised the point that the application for a permit is made by Mr. Meredith-Smith alone whereas title searches indicate that he is a co-owner of No. 60 with Emily Collingwood. The title information indicates a common address for Mr. Meredith-Smith and Ms. Collingwood at 60 Jordan Street. The point taken is that Ms. Collingwood is an owner who is not an applicant for the permit and the permit application form does not contain a declaration that she, as owner, has been notified of the application. Mr. Meredith-Smith has signed the application as owner without inserting the date of signature in the same box and, in the second box on the form, where he might have signed the declaration that he had notified the owner, he merely inserted the date. He also has signed and dated to indicate that the information he has given is true and correct. I am assured that Ms. Collingwood is aware of the application, and I accept that assurance. The application, if successful, can only advantage the land of which she is a co-owner. It does not have the potential to disadvantage her or her land. The defect, at worst, is an irregularity, and one capable of rectification by amendment. There are previous cases where it has been held that such a situation is an irregularity that does not prevent the Tribunal from dealing with the case. To put the matter beyond doubt I invoke the power afforded the Tribunal under cl.62 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) to disregard any failure to comply with the planning enactments in this regard, and invoke the preservation of jurisdiction afforded by that clause.

99 I do the same in relation to Mr. Fitzgerald's next point which was to complain that the permit application has left blank the portion of the form calling for a statement of the way in which the land is now used. That piece of information is immaterial in the circumstances. In any event, it has been well known to all parties, at all material times that the use of 60 Jordan Street is and has been for residential purposes. I disregard any failure in this respect, otherwise I would mend it with an amendment.

100 Mr. Fitzgerald's next point is even more pedantic and, I am afraid, a silly waste of time. He points to a minor misdescription where area D is referred to in the permit application where it seeks removal of the carriageway easement from that area. The point taken is that area D is only part of the easement affecting No. 60. It is, in fact, the part sought to be deleted from the easement as a whole. It is technically true to say that it is part of the larger easement, rather than a separate easement itself. However, it is obvious what is meant. I propose to disregard this point, which is not argued to invalidate the proceedings any way, although, if necessary, it could be corrected with an amendment. At the stage this point was raised it was too late for any such amendment to be of benefit to anybody. As I say, everybody knew what was meant.

101 The next three technical points raised by Mr. Fitzgerald commence with assertions that there is no evidence, or no insufficient evidence, in relation to certain points. I don't propose to go into these points in detail because, by the end of the hearing there was evidence that I find amply sufficient (and with completely uncontradicted to all intents and purposes) on the points raised. In fact the claim of no evidence was, on some aspect, an over statement from the beginning.

102 The next point was to assert that the continued existence of the easement over area D was necessary for the proprietors of No. 60 Jordan Street to gain access to the rear of their property, effectively because of the narrowness of the driveway, and with the added observation that cl.52.06-3 specifies a standard width of 3 metres. All this seems to be wrong. Clause 52.06-3 is to do with the design of car spaces and access ways. I do not think that it technically has application in relation to this already long established dwelling. In any event, the specification of 3 metres, where it does apply is not mandatory in that the provision says that an access way "should" be at least 3 metres wide. Three metres cannot be achieved here because of the closeness of the respective houses to each other. There is a physical constraint in that respect. The nearest approach of the two houses to each other is in a location where the review applicants are not challenging the deletion of part of the easement, in any event. The submission appears to be suggesting that Mr. Meredith-Smith needs to be protected from himself. I think it is sufficient for him, with the assistance of his advisors, to look after that. In any event, the owners of 60 can use any part of area D as they like, if the easement is lifted from that area, because they own that area in fee simple. If the easement is lifted from that area they can use it for any lawful purpose they see fit, including access. They have access to the carport now, without using any of area D.

103 The last of these points is to invite me to consider, in relation to the continued need for the easement, as to whether there is sufficient access for the proprietors of No. 60 Jordan Street without it. In a physical sense, they have the access that is physically available, whether or not area D is removed. Area D is not now, and never has been available. Whether access enjoyed by the proprietors of No. 60 has de facto used part of the gravelled space between the houses to the north of the easement effecting No. 62 is an interesting point that I do not find it necessary to investigate or consider. Rights to use that area for access may have been acquired by prescription or long user, but it is beyond the scope of this case to determine that point. If the heat and hostility between the parties to this case (excluding the responsible authority) is sufficient to cause them to think they need to have further litigation over any use of that area by owners or occupiers of No. 60, they will need (I believe) to bring such proceedings in court, rather than before this Tribunal. There may well be scope for money, time and effort to be consumed in further litigation over that, and other matters relating to this space between the two houses. Litigation may not be the most sensible or reasonable, far less the cheapest, means of resolving any such question; though it may be a means of giving vent to feelings of hostility. They are matters for the parties and for the future, rather than this case.

104 In his conclusion Mr. Fitzgerald suggests that the owners of No. 60 are trying to get something for nothing and attempting to deal peicemeal with wider property disputes. So far as the second point is concerned, I can only deal with the case before me. As to the first, people can make up their own mind as to whether that is true that the owners of No. 62. Whether accusations of trying to get something for nothing are viewed one way or the other, my own conclusion is, for the reasons given above, that the application for review should be granted together with a permit in terms of the Notice of Decision to Grant a Permit issued by the responsible authority on 23 March 2004.

105 Mr. Fitzgerald has asked me to reserve the question of costs pending determination of this case. I will do so as requested. That does not imply that I think that an order for costs would be appropriate. That would have to be determined, if and when an application for an order for costs is made. Section 109 VCAT Act contains the Tribunal's powers in relation to costs.