Oral reasons for the decision were given at the hearing.

1

These reasons reflect oral reasons given at the hearing.

2

Application P2885/2004 is an application by Mr King for declarations under section 149A Planning and Environment Act 1987 ("PE Act") against the Colac-Otway Shire Council ("Council") in relation to an easement over his land. He sought declarations that

•

the easement was an easement of drainage rather than an easement of carriageway,

•

the Tribunal issue directions to the Land Titles Office to remove notations on the plan of subdivision relating to the easement,

•

determinations as to who and under what conditions is entitled to use the easement,

•

as to the operation of the Limitations of Actions Act 1958 in relation to the fencing of the easement for a period of time,

•

as to the operation of the Road Management Act 2004 as to the easement, and

•

his entitlement to compensation from the Land Titles Office Guarantee Fund.

3

He submitted the Tribunal has jurisdiction under section 149A(1)(a) PE Act because the matter relates

"...to land or a particular use or development of land."

4

I do not accept Mr King's interpretation of this provision. The Tribunal has jurisdiction under this provision if, in terms of paragraph (a):

"(a) The matter relates to the interpretation of the Planning Scheme or a permit in relation to land or a particular use or development of land;"

5

It is not sufficient that the matter relates to land or a particular use or development of land. The paragraph requires there must also be a question of the interpretation of a planning scheme or a permit in relation to land or a particular use or development of land. The Tribunal does not have power under this provision to consider any matter relating to land or a particular use or development of land.

6

The declarations he seeks do not arise out of the interpretation of the Permit or clause 10 of the permit. Whilst they are related to the permit, they seek a determination of questions of private property rights and the interpretation of the Transfer of Land Act1958 ("TLA"). The Tribunal has no jurisdiction under any legislation to consider theses matters.

7

The Tribunal cannot consider the request to amend the permit P2886/2004 unless Mr King establishes the threshold grounds under section 87(1) PE Act. The threshold grounds he relied upon were

(c) there has been a material mistake in relation to the grant of a permit; and

(d) a material change of circumstances has occurred since the grant of a permit.

8

The material mistake asserted was that the easement on the title to his land (lot 14 on Plan of Subdivision 044888) over an area marked E-1 is an easement of drainage not an easement of carriageway.

9

The title search tendered included as encumbrances

"any encumbrances created by section 98 Transfer of Land Act or section 24 Subdivision Act 1988 and any other encumbrances shown or entered on the plan set out under DIAGRAM LOCATION below."

10

The diagram describes the easement "E-1" as

"the easements (if any) existing over the same by virtue of section 98 of the Transfer of Land Act."

11

The registered copy Plan of Subdivision marks the E-1 area marked as

12

Mr King was in dispute with the Land Titles Office alleging that when the Plan of Subdivision was registered in 1959 the registered copy had been altered without proper authorisation.

13

His request to remove condition 10 was based on the assertion that Council in requiring it had made a mistake in interpreting the easement on PS 44888 as a carriageway easement and that the easement on his subdivision of Lot 14 reflect the existing easement of carriageway shown on the current title.

14

He argued that he was not affected by PS 44888 as it was an old subdivision and that the easement should not be reflected on his 2 lot subdivision of Lot 14approved by the Tribunal in application P31/2004.

15

I find the title shows the land is subject to an easement of carriageway by virtue of sections 42(2) and 98 TLA and that Council has not made a material mistake in relation to the grant of the permit despite Mr King's assertions that the Titles Office made an error in registering the Plan of Subdivision over 40 years ago. Even if the condition were not contained in the permit the land in my view is still subject to an easement of carriageway. Mr King has misinterpreted the TLA and appeared unaware of section 42(2) which provides that the indefeasibility of title under section 42(1) TLA is subject to a number of things including

(d)

any easements howsoever acquired subsisting over or upon or affecting the land.

16

The easement was created by section 98 TLA on the registration of PS 44888 and his title remains subject to it. PS44888 by reference is part of his registered title, and Council and the Tribunal are entitled to rely on the face of the registered title. I observe that in my experience as a property lawyer this is not an arcane or difficult legal issue, but rather a well understood basic principle. I do not accept Mr King's argument that he would necessarily be entitled to a rectification of the title because he cannot find evidence of authorisation of an amendment of the plan given over 40 years ago. Such authorisations were often given in letters or other documents and in my experience may not be shown on the face of the registered plan. When Mr King purchased the land the title put him on notice of the existence of PS 44888 and a search of that plan would have revealed the details of the easement as part of the Register of the Land Titles Office. The doctrine of indefeasibility of title established by section 42 TLA exists to create certainty of title and to put to one side challenges of the kind brought by Mr King. I find there is no evidence of a material mistake.

17

Mr King was not able to establish there has been a material change of circumstances in the terms required by section 87. He alleged certain discussions and advice with the Council and made to him in the Tribunal hearing of the permit application were a material change in circumstances. However I cannot so find. They do not view constitute a material change of circumstances. It is established law that a material change of circumstances is a change in "planning circumstances" such as a change of technology,, a change in the character of the area, a change in the local amenity or a change in material circumstances external to and surrounding the use. Discussions, expressions of opinion and advice are not.

18

Accordingly both applications should be dismissed as misconceived and lacking in substance under section 75 VCAT Act.

19

Mr King's section 87 request also sought a minor amendment in the boundary between the 2 lots on his subdivision of lot 14. He said Council had told him it could not consider this amendment, and that it must be approved by the Tribunal under a section 87 request. No doubt Council was referring to section 73(1) (a) PE Act. Mr Haydon did not dispute this position.

20

However condition 1 of the permit reads:

1. The subdivision as shown on the endorsed plan must not be altered save for the written consent of the Responsible Authority.

21

Thus the permit itself allows for an amendment of the plan. The amendment of the plan does not require an amendment of the permit under section 73, but merely requires a secondary consent under condition 1. Council has power to approve to give a secondary consent to the amendment of the plan under condition 1 of the permit, provided the building envelope is in accordance with condition 12. The appropriate course of action for Mr King is to have his surveyor prepare an amended plan of subdivision in final form, showing the building envelopes required by condition 12 and the amended boundary between the lots, and submit it to Council with a letter written asking for Council's consent to the amendment under condition 1 of the permit.

22

If Council does not give its consent, it would appear Mr King has a right under section 149(1) PE Act to apply to VCAT for as review of a decision of Council to refuse consent or a failure to give that consent.

23

It appears Council was also concerned about a discrepancy in Member O'Leary's decision dated 5 May 2004 in application P31/2004. The discrepancy is between the form of condition 12 set out in the order and paragraph 21 of the reasons. I have discussed the matter with Mr O'Leary who informs me that the form of the condition 12 set out in the order referring to the building envelope being not closer than

"4 metres from the north eastern property boundary..."

is correct. This is the boundary along the easement of carriageway. The reference in clause 21 of the reasons to

24

Mr King is entitled to apply to the Tribunal under section 119 VCAT Ac t for a correction of the reasons. It is suggested that all parties proceed on the basis that the correct dimension required by condition 12 of the building envelope is 4 metres from the north eastern property boundary.

25

Mr Hayden applied for costs of $1000. Notice of the application for costs was given by Mr King by fax the day before the hearing. I was not prepared to consider this application on the day because of the short notice. If Council wishes to pursue costs it should file with the Tribunal and serve on Mr King its application for costs specifying and detailing the amount claimed and stating the grounds on which it relies. The Tribunal will then list the matter for hearing in due course.

26

However in the context of costs I observe that

•

The Practice Day hearing to raise the jurisdictional matter was initiated by the Tribunal rather than by Council, and

•

It appears uncontested that Mr King made the section 87 request to amend the boundary between the lots in reliance on a representation by Council officers that the only avenue open was under section 87.