procedural. Tribunal declined to strike out or summarily dismiss VCAT Application P463/2020; compulsory conference and hearing dates confirmed and earlier procedural orders maintained.
Key principles
The Tribunal will not summarily dismiss or strike out a planning review under section 75 of the VCAT Act unless the proceeding is obviously unsustainable in fact or law, can on...
An applicant's concerns that a planning amendment will lead to land being effectively landlocked, and related concerns about whether proposed landscaping can be lawfully achieved...
Questions about whether planting within an area subject to an easement of way would prevent legitimate access are an appropriate matter to consider in a planning review of an...
Issues before the court
Whether the application for review should be summarily dismissed or struck out under section 75 of the VCAT Act as misconceived, bound to fail or an...
Whether the Tribunal may consider access/easement and private property law matters arising from a proposed amendment to a planning permit in the...
Whether the applicant's neighbourhood character and landscaping grounds are devoid of planning merit.
Plain English Summary
VCAT refused to strike out a neighbour's review of a council decision to allow an amendment to an aged care facility permit. The Tribunal held that the neighbour raised legitimate planning concerns — mainly whether proposed landscaping in a transferred 'garden strip' (subject to easements) could lawfully and practically provide the screening relied on by the amendment, and whether the amendment would effectively landlock adjacent land. Because these issues involved complex factual and property-law interactions and had plausible planning relevance under the local neighbourhood character policy, the matter was not 'absolutely hopeless' and must proceed to conference and hearing.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,799 words · generated 04/07/2026
What happened
This proceeding concerned a review under section 82 of the Planning and Environment Act 1987 of a decision by Banyule City Council to approve an amendment to an existing planning permit for an aged care facility at 390 Main Road, Lower Plenty. The original permit (P595/2002) authorised a 90-bed facility; the amendment sought by Japara Property Holdings proposed increasing capacity to 120 beds and building extensions in two new wings toward the eastern and southern boundaries, together with tree removals and a proposed relocation or adjustment of easement arrangements to facilitate landscaping and access (Reasons, "What is this proceeding about?", paras 1–3).
Cited legislation
3 cited instruments linked from this judgment.
A separate Realignment Permit (P147/2020) issued on 24 February 2020 altered the boundary between the subject lot and adjacent land owned by Ms Crupi, transferring a 313m2 'garden strip' from the Crupi land into the subject lot. The amendment plans relied on that garden strip for buffer landscaping to soften the eastern wing's visual impact. The garden strip's northern portion adjoins Main Road and had previously been subject to a number of easements shown on various plans of subdivision (notably a Yellow Easement described for 'Way, Drainage, Sewerage, Electricity, Gas & Telephone', and a 'Yellow Hatched' easement) (paras 6–13).
The Applicant (owner of an adjacent lot at 394 Main Road) argued the amendment would effectively landlock the Crupi land once the garden strip was transferred, because the existing practical access route used by Crupi runs over a communal accessway across other properties, not via a recorded 'way'. The Applicant was also concerned that the garden strip area that was proposed to be planted might be subject to easement rights that would prohibit such planting, thereby undermining the mitigation of visual impacts relied upon in the amendment. The proposed Plan of Subdivision contained an error in the advertised plans, omitting the word 'Way' in the description of Proposed E-3 (paras 9–15).
The respondent sought summary dismissal under s75 of the VCAT Act, contending the Applicant's challenge was essentially a private property/easement dispute and therefore misconceived and bound to fail in the planning tribunal (Reasons, "Why was this referred to a Preliminary hearing?", paras 1–3). The Tribunal convened a preliminary hearing to determine whether the applicant's review should be struck out or summarily dismissed.
Why the court decided this way
Member Susan Whitney declined to strike out or summarily dismiss the application. The decision rests on the proper application of the high threshold in s75 VCAT Act and the particular factual and legal complexity of this matter.
Key legal test: The Tribunal reiterated the high bar for summary dismissal, citing Deputy President Dwyer's summary in Axicom Pty Ltd v Melton CC that a proceeding must be "obviously unsustainable in fact or in law," "can on no reasonable view justify relief" or be "bound to fail" before it should be dismissed (Reasons, "What is the Tribunal's decision?", paras 1–3). The power must be used sparingly because it removes the parties' opportunity to have disputed facts tested at hearing.
Application to facts: The Tribunal found the Applicant's concerns could not be characterised as mere collateral or vexatious litigation for an ulterior purpose. Although the Applicant initially focused on access and property law questions, the Applicant produced cogent reasons for that focus, notably the late discovery of the Realignment Permit, the complexity of the MOU, and uncertainty about what rights the recorded easements actually conferred in practice (Why was this referred... paras 8–9). The Tribunal accepted that a lay person confronted with these documents might reasonably pursue the access question first, and later raise planning grounds such as neighbourhood character and landscaping adequacy once the access issues were better understood (Tribunal's reasons, paras 2–4 and 6–7 in "What is the Tribunal's decision?").
On planning merit: The Tribunal concluded that the Applicant's neighbourhood character and landscaping points were not plainly devoid of planning merit. Clause 22.02 (Bush Woodland Precinct 2) emphasises vegetation, integration with topography, and the need to ensure buildings do not dominate the landscape. Given the proposed reduction in setbacks and visible lower ground level from the east, the Tribunal considered the question whether planting in the garden strip could realistically screen the eastern wing to be a legitimate planning question (tribunal's reasons, paras 5–7).
Easement-related matters: The Tribunal acknowledged that detailed disputes about the legal operation and management of carriageway easements are matters for courts, however it distinguished that from the planning task. It was reasonable for the Tribunal to examine whether an area that would be subject to an easement of way could, in practice, be planted in the manner proposed, and therefore whether the landscaping relied upon in the amendment would be achievable (Reasons, "What is the Tribunal's decision?", paras 5–7).
Finally, because the essential factual and legal questions were complex and not demonstrably hopeless, Member Whitney declined to exercise the summary dismissal power and confirmed the procedural timetable (final para of "What is the Tribunal's decision?").
Before and after state of the law
Before this decision: The legal approach to s75 applications was already well-established: summary dismissal is exceptional, requiring the respondent to show the proceeding is 'absolutely hopeless'. The Tribunal relied on Axicom v Melton CC to summarise those principles (Reasons, "What is the Tribunal's decision?", para 3).
After this decision: Liersch v Banyule reinforces that where planning review engages complex factual matrices that intersect with private property rights (easements, realignments, MOU options), the Tribunal should be cautious about striking out applications at preliminary stage. It confirms that planning tribunals may, and should, assess the practical planning consequences of easement arrangements (for example whether planting in an easement area would prevent access) without deciding private law easement disputes themselves. The decision thus clarifies the boundary: property-law disputes remain for courts, but their practical effect on planning merit is properly examinable by the Tribunal.
Key passages with plain-English translation
"An application for summary dismissal is a serious matter and an order that the Tribunal does not make lightly." (Reasons, "What is the Tribunal's decision?", para 1)
Plain-English: The Tribunal will not casually throw out a case before a hearing; dismissals at this stage are exceptional.
"the proceeding must be obviously unsustainable in fact or in law, can on no reasonable view justify relief, or must be bound to fail." (Reasons, "What is the Tribunal's decision?", para 3)
Plain-English: To get a case dismissed immediately, the respondent must show there is effectively no possible way the applicant could succeed.
"I regard the Applicant's question involving the ability of the Proposed E-3 area to be planted, in light of it being an easement of way, to be a reasonable one." (Reasons, "What is the Tribunal's decision?", para 6)
Plain-English: It is sensible to ask whether the proposed planting would be lawful or practical where the land is subject to an easement that allows others to pass over it; that question influences whether the amendment's landscaping mitigation can actually work.
"I do not regard this as a proceeding that is obviously unsustainable ... I am not persuaded that this application meets the very high bar of section 75 of the VCAT Act." (Reasons, "What is the Tribunal's decision?", para 10)
Plain-English: The Tribunal decided the respondent failed to show the applicant's case is hopeless; the case should continue to be heard.
What fact patterns trigger this precedent
This decision will be particularly relevant where:
An amendment to a planning permit relies on landscaping or physical modifications in areas affected by prior subdivision, easements, or boundary realignments, and neighbours contend those easement constraints will prevent the mitigation measures from being implemented.
A Realignment/Plan of Subdivision has transferred small parcels (garden strips, buffers) between adjacent lots, and an amendment seeks to rely on that transferred land for screening or access.
An applicant raising review is a layperson who first focuses on access/easement issues and later advances planning grounds; the Tribunal should not treat late-arriving planning grounds as necessarily contrived.
The respondent seeks summary dismissal based on the argument the dispute is essentially a private property dispute and outside the Tribunal's remit; Liersch shows the Tribunal must examine whether practical planning consequences of property arrangements give rise to triable planning issues.
How later courts have treated it
At the time of this decision (10 September 2020) it stands as a VCAT Member's reasons. The Tribunal explicitly relied on and distinguished Axicom v Melton CC [2020] VCAT 190 (DP Dwyer) for the correct summary-dismissal test. Practitioners should treat Liersch as an application of established s75 principles rather than as altering them. It is a useful illustration of the Tribunal's careful approach where factual complexity and mixed planning/property questions appear.
Users must check subsequent authority and any appeals for binding precedent or refinement; this decision is a Member's ruling and persuasive within VCAT practice, but may be distinguishable on facts in other cases.
Still-open questions
Where exactly is the line between a planning tribunal's permissible examination of the practical consequences of easements and the impermissible determination of private easement rights? Liersch shows the Tribunal will examine practical consequences, but the boundary remains case-specific and may require future appellate clarification.
Does the presence of an error in the advertised description of a proposed easement (omission of 'Way' in Proposed E-3) materially affect the Tribunal's power to consider the amendment, or would that error require re-advertisement? Liersch notes the omission was an acknowledged error but proceeds without resolving the procedural consequences.
What is the interplay, in practice, between registration of a plan of subdivision following a realignment permit and a concurrent planning amendment application where the plan transfer is conditional on planning approval? Liersch records that registration and sale of the garden strip was commercially contingent upon approval but does not resolve whether the Tribunal can or should treat that contingency as determinative of access outcomes.
To what extent will tribunals permit lay applicants to refine or add planning grounds after filing when their initial focus was on property-law consequences? Liersch adopts a generous approach where explanations for the sequencing of issues are plausible; future cases may test the limits of that tolerance.
Finally, if the Tribunal ultimately approves an amendment that effectively results in a neighbouring lot having no direct access to a road, what remedies remain available to the affected owner? Liersch emphasises this remains a private law question for courts, but the practical sequencing and overlap of remedies deserve further exploration.
Practical takeaways for practitioners: when faced with a s75 strike-out application, emphasise factual complexity, potential planning merit grounded in scheme policy, and explain why property-law documents create genuine planning questions; conversely, respondents seeking summary dismissal must meet the 'absolutely hopeless' threshold with focused evidence that no planning question of substance exists.
Judgment (27 paragraphs)
[1]
Liersch v Banyule CC [2020] VCAT 1004 (10 September 2020)
I decline to strike out or summarily dismiss VCAT Application P463/2020.
The compulsory conference scheduled for 30 September 2020 at 10:00am is confirmed.
The hearing scheduled for 25 February 2021 at 10:00am is confirmed.
Orders 2 to 15 of the Tribunal's orders dated 13 July 2020 are confirmed and must be complied with by the parties.
[5]
Ms Walla Idris, town planner of Banyule City Council
[6]
This application is brought by Jennie Marie Liersch ("Applicant") under section 82 of the Planning and Environment Act 1987 seeking review of the decision by the Banyule City Council ("Council") to approve a proposed amendment to planning permit P595/2002 ("Permit"). The Permit was issued for 378 & 390 Main Road on 6 October 2003 and itself allows:
[7]
The use and development of the land for the purpose of a 90 bed residential building (aged care facility), the removal of native vegetation, a reduction of the Scheme's requirements for off-street carparking and the alteration of access to a Category 1 Road Zone, in accordance with the endorsed plans.
[8]
The aged care facility is constructed over 2 and 3 levels and presently contains landscaping in the setbacks to the boundaries, where this landscaped area also serves as communal open space for the residents. Vehicle access is via a circular driveway in the frontage.
The Respondent, Japara Property Holdings Pty Ltd, seeks to amend the Permit to increase the number of beds to 120 and to undertake associated buildings and works to increase the size of the building. These increases will result in the built form expanding in two new 'wings' towards the eastern and southern site boundaries, with a corresponding decrease in the setbacks to those boundaries. The building height will match the existing ridgeline, whilst the extensions are designed as a continuation of the existing building in terms of style and colour. There is also permission sought for removal of trees and the relocation of an easement. The amendments sought involve changes to what is allowed by the Permit, the conditions of the Permit and the endorsed plans.
The land upon which the aged care facility is constructed is comprised in Lot 2 on PS508572W. Formerly, that land was included in Lot 1 on LP145915D but a re-subdivision with adjoining land to the west created the current lot. (Please refer to Appendix A for a copy of LP145915D.)
This lot abuts the land at 392 Main Road owned by Claudia Crupi ("Crupi land") on its eastern and southern boundary. The Crupi land is Lot 2 on LP145915D. The Crupi land is largely located to the south of the aged care land, with only a pan-handle extending along the eastern boundary of the subject land and joining Main Road. On title, and in theory, this pan-handle provides the Crupi land with access to Main Road, although in practice the Crupi land has, for many years now, gained access to Main Road via a 'communal' accessway that traverses the neighbouring land at 394 Main Road and 396 Main Road. This communal accessway is paved, the Applicant indicating that this was done by the various landowners to alleviate the problems that occurred when it rained, and the gravel and dirt were washed onto Main Road.[2]
The Applicant owns the land at 394 Main Road, being Lot 3 on LP145915D. 396 Main Road is comprised in Lot 4 on LP145915D. Both the Applicant's land and the land at 396 Main Road have pan-handle access to Main Road in a similar fashion as the Crupi land. The Applicant's land is largely located to the south of the Crupi land, whereas 396 Main Road is located to the east of the Applicant's land. Neither the Applicant's land nor 396 Main Road have a direct abuttal to the aged care land.
[9]
1A(a) The buildings and works shown on the endorsed plans must not commence prior to the purchase of the "Garden Strip" at 392 Main Road, Lower Plenty as shown on the endorsed plans
[10]
30 Unless otherwise agreed in writing by the Responsible Authority, prior to commencement of the development permitted by this amended permit the plan of subdivision associated with the boundary realignment permitted by permit P147/2020 must be certified.
[11]
Due to the topography of the site, the lower ground floor will effectively be visible on the east elevation along with the ground and first floor, resulting in the three levels of built form being apparent from views taken from the east. As stated, the garden strip is shown on the advertised plans as being an area where various plantings will occur in order to soften views of the eastern wing of the aged care building.
The Applicant brought this application for review based on a concern that the amendment to the Permit would result in the Crupi land becoming landlocked, by virtue of the garden strip being acquired by the Respondent. This is of concern to the Applicant because at present the Crupi land gains access to Main Road via the communal driveway with the Applicant and 396 Main Road. The Applicant argues that this arrangement is essentially informal, and that the Applicant has no interest in granting Crupi formal rights of access over the Applicant's property[3] to enable them ultimately to have access to Main Road. The statement of grounds forming part of the application for review addresses this issue.
[12]
Why was this referred to a Preliminary hearing?
[13]
This application was referred to a practice day hearing on 10 July 2020, the purpose of which was to consider whether the application should be struck out or summarily dismissed. This listing followed an application by the Respondent to have the matter summarily dismissed under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 ("VCATAct") as being misconceived, bound to fail and therefore lacking in substance.
The Respondent contended that the Applicant's application did not raise any planning grounds and was an abuse of process in that it sought to deal with private property matters that were outside the ambit of the jurisdiction of the Tribunal in an application of this nature.
At that practice day hearing, Deputy President Bisucci determined that a hearing by telephone would not be in the interests of justice to the parties, given the complexity of the documents and issues involved. DP Bisucci referred the application for summary dismissal to a preliminary hearing to be heard by online platform.
Prior to the preliminary hearing, additional submissions were filed. At the preliminary hearing, the parties spoke to the submissions that they had filed and made oral submissions in response to questions that I posed.
The Council relied on correspondence sent to the Tribunal dated 6 July 2020, in which it stated that the Crupi land would not be landlocked based on, what I understand to be (gleaned from the wording) the Yellow Hatched Easement. The Council suggested that the management of the carriageway easement is a matter for the courts to decide and is a civil, not a planning, matter.
The Applicant provided detailed submissions regarding who he considered was the correct beneficiary of the Yellow Easement. In the Applicant's view, the reference to easement of way is for service providers and does not enable Crupi to gain access to Main Road. The Applicant says that Crupi will need to be given an implied right of way over the garden strip in order to obtain access to Main Road. The Applicant says that this is inconsistent with the planting of this area with landscaping that would prevent such access. As a consequence, the Applicant thought that this area would not be able to be planted in the manner proposed. In addition, the Applicant says that Proposed E-3 needs to be kept in a state that allows service providers to access this area, again meaning that planting of this area with landscaping would prevent such access. Finally, the Applicant was of the view that the Tribunal would not allow a planning permit to issue where this resulted in the creation of a landlocked parcel.
[14]
An application for summary dismissal is a serious matter and an order that the Tribunal does not make lightly. The principles one considers in making such an order were recently discussed by Deputy President Dwyer in Axicom Pty Ltd v Melton CC,[4] which was referred to me by the Respondent. That decision involved a proposed telecommunications facility, where the application for review had been brought by a commercial competitor. At the hearing before DP Dwyer, the applicant for review and the permit applicant were legally represented by Senior Counsel.
In that case, DP Dwyer ultimately concluded that the proceeding was misconceived or lacking in substance, because it was devoid of planning merit having regard to the grounds of review, and was vexatious or an abuse of process, because it had been brought for a collateral purpose and was intended primarily to secure or maintain a commercial advantage.
In considering the 'very high bar' that must be met under section 75 of the VCAT Act, DP Dwyer summarised the general principles relating to the operation of this section as follows:
[15]
the proceeding must be obviously unsustainable in fact or in law, can on no reasonable view justify relief, or must be bound to fail.
[16]
the power to order summary dismissal should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. Indeed, it must be 'very clear' that the proceeding is 'absolutely hopeless'.
[17]
the power should not be invoked where all that is shown is that, on the material currently before VCAT , the applicant may fail to adduce evidence substantiating an essential element of the complaint.
[18]
a proceeding should not be summarily dismissed if the ultimate fate of the proceeding depends upon disputed questions of fact that could be established by evidence yet to be adduced or tested.
[19]
the respondent to a proceeding bears the persuasive burden of showing 'that the complaint is undoubtedly hopeless'.[5]
[20]
In that case, DP Dwyer analysed the ground of review that raised potential issues of planning merit, being an assertion that the visual impact of the telecommunications facility had not been minimised. The ground of review was assessed against the relevant facts and the following comment was made:
[21]
...However, given the location and size of the industrial estate here, its built form, and the lack of proximity to any residential areas etc, I am of the opinion that Axicom's objection that 'visual impact has not been minimised' is an objection that is devoid of planning merit, particularly having regard to the Code of Practice. It is an objection that is 'lacking in substance'. The application for review is unsustainable and bound to fail.[6]
[22]
In the matter before me, the Applicant's concerns other than as regards access go to the consistency between the proposed extension to the aged care facility through the creation of the eastern wing towards the eastern boundary[7] and the neighbourhood character policy in the Scheme, as well as the ability for the plantings within the garden strip to mitigate visual impact of the extended building. It is apparent from the material before me that the Applicant initially expressed the concern to be in relation to access and that this remains a concern for the Applicant. However, the explanation provided by the Applicant as to why the focus was initially in that direction satisfies me that it is not that they didn't hold concerns about neighbourhood character or the adequacy of landscaping, it is just that the Applicant thought that it wouldn't even get to that level of consideration because the landscaping could not be undertaken in the garden strip and therefore the proposal would not proceed.
Here, the Applicant is a professional in an unrelated field who has attempted to understand a somewhat complex area of property law, and how this intersects with planning law. Documents such as the MOU and the proposed deed of easement contribute to the complexity and the lack of clarity as to what rights do and do not exist. I accept the reasons given to me by the Applicant as to why the Applicant did not, at an earlier stage in the process, raise the issues of neighbourhood character and adequacy of landscaping as regards visual amenity: they didn't think it was necessary, believing that refusal was a fait accompli based on the access argument.
I do not think that the Respondent's assertion that the Applicant's recently included grounds are a recent construct - contrivances included for an ulterior purpose - stand scrutiny when one considers the complexity of the documents involved and the reasoning provided by the Applicant for their actions: to a lay person, a planning permit's impact upon access to land must surely be a matter considered in its use and development. Further, the Applicant's assessment of the amendment application was being undertaken absent of an appreciation that the Realignment Permit had been issued and the impact that would have on the land in question, including the garden strip.
Additionally, unlike the Tribunal in , I am not persuaded that the planning grounds now raised by the Applicant are devoid of planning merit when considered in the context of the application.
[23]
[1] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.
[24]
[2] The Applicant stated that in 1999 this accessway was gravel and dirt.
[25]
[3] In this respect, the Applicant refers to its refusal to enter into the proposed Deed of Easement provided by Crupi to the Applicant in February 2019.
[26]
[4] (Red Dot) [2020] VCAT 190, noting that this decision is presently under appeal to the Supreme Court of Victoria.
[27]
[7] Noting that the Applicant has indicated that no issue is taken with the extension of the built form to the south - i.e. the southern wing.
Parties
Applicant/Plaintiff:
Liersch
Respondent/Defendant:
Banyule CC [2020] VCAT 1004
Legislation Cited (3)
Environment Act 1987
Civil and Administrative Tribunal Act 1998
Administrative Tribunal Act 1998
AI Analysis
Outcomeprocedural
Disposition:
Tribunal declined to strike out or summarily dismiss VCAT Application P463/2020; compulsory conference and hearing dates confirmed and earlier procedural orders maintained.
Plan of Subdivision LP145915D identifies a number of easements that were appropriated, and which encumbered the land in that plan of subdivision. One of the easements appropriated is marked yellow on that plan and is described as being for "Way, Drainage, Sewerage, Electricity, Gas & Telephone" ("YellowEasement"). The Yellow Easement runs parallel to Main Road, from the western edge of the Crupi pan-handle, into the Applicant's land and the land at 396 Main Road. On the Crupi land, the easement is approximately 6 metres wide but once it moves into the Applicant's land and the land at 396 Main Road it runs south, effectively for the length of each of those pan-handles.
There is also an easement alignment that runs essentially west to east, from the aged care land (then Lot 1 on LP145915D) into and across the pan-handle of the Crupi land, into and across the pan-handle of the Applicant's land and up into 396 Main Road, before connecting to Main Road. This easement is originally shown as 'green hatched' on the plan of subdivision but becomes 'yellow hatched' as it moves into the Applicant's land and the land at 396 Main Road. The green hatched easement is expressed to be for "Drainage and Sewerage", whereas the yellow hatched easement is for "Way, Drainage, Sewerage, Electricity, Gas & Telephone" ("Yellow HatchedEasement").
The Yellow Easement is carried over to Lot 2 on PS508572W as appurtenant easement A-1 for "Way, Drainage, Sewerage, Electricity, Gas & Telephone" in favour of Lot 1 on LP145915D. The green hatched easement is also shown on that plan, as encumbering easement E-4 for "Drainage & Sewerage" in favour of lots on LP145915D. The Yellow Hatched Easement is not shown on PS508572W.
Prior to the amendment application being determined by the Council, the Respondent sought and obtained planning permit P147/2020, issued on 24 February 2020 ("RealignmentPermit"). The Realignment Permit allowed a realignment of the boundary between the subject land and the Crupi land, resulting in a 313m2 part of the Crupi land being included in the land comprised in Lot 2 on PS508572W. This area of land has become known as the "garden strip" because it is this area that the Respondent intends to use for buffer landscaping associated with the east wing expansion of the aged care building. I understand that the Realignment Permit was not advertised, and that the Applicant was unaware of this permit until its existence was revealed during these proceedings.
The Respondent and Ms Crupi have signed a memorandum of understanding in relation to the acquisition of the garden strip ("MOU"). Included in the MOU is a provision whereby the Respondent agrees to grant to Ms Crupi an option to require the Respondent to grant an easement of carriageway over part of the garden strip, subject to Ms Crupi first taking several, specified actions to secure the existing access on the communal accessway, and these ultimately being unsuccessful. These actions include pursuing proceedings to establish an easement of necessity or an easement of long-use.
The land that will become the aged care facility land following the registration of the plans associated with the Realignment Permit is now Lot 1 on proposed plan of subdivision PS838030T ("Proposed POS"). The transfer of the garden strip area and the registration of the Proposed POS will result in the Crupi land, as modified by the Realignment Permit, having no direct access to Main Road.
The northern section of the garden strip that adjoins Main Road and is 6 metres deep is the part of the Crupi land that is subject to the Yellow Easement. It was asserted that asset plans indicate that there are no drainage or sewerage assets in this section.
The Proposed POS shows a modified appurtenant easement A-1 for "Way, Drainage, Sewerage, Electricity, Gas & Telephone" in favour of Lots 1 and 2 on LP145915D, modified because the area within the garden strip that was also subject to the Yellow Easement is no longer part of appurtenant easement A-1. Rather, this area is now subject to encumbering easement E-3 that is expressed to be for "Way, Drainage, Sewerage, Electricity, Gas & Telephone" and in favour of the Lots on LP145915D ("Proposed E-3").
The advertised plans for the amendment application unfortunately omit reference to "Way" in describing Proposed E-3. At the hearing the Respondent acknowledged that this was an error in the plans.
The Notice of Decision to Amend a Permit issued by the Council for the proposed amendment includes two conditions that refer to the Realignment Permit:
I understood that these issues, combined with the Applicant's belief that the Council would not support the amendment application if landscaping in the garden strip was not able to be achieved, led the Applicant to think that this amendment application would fail.
The Applicant acknowledged the initial grounds raised in the application for review, along with early submissions and the content of emails that were referred to me by the Respondent, focused on the access issue. The Applicant is not a legal practitioner but is a professional in an unrelated field. The Applicant stated that this is the first time that he has looked at documents of this nature, in this way, for this purpose. I understood the Applicant to be saying that the focus upon the access issue in the communication was because the Applicant was trying to understand how the Crupi land would have access to Main Road through the garden strip when that area was planted as a landscape buffer. Partly, the Applicant's confusion appears to be due to the terms of the MOU that provide Ms Crupi with the option to have a carriageway easement granted over the garden strip if other proceedings to secure the existing access were unsuccessful. Further, the Applicant did not know that the Realignment Permit had been sought, and then issued, resulting in a change to the lot boundaries.
In further written submissions made to the Tribunal, and expanded upon verbally, the Applicant essentially contended that in the Applicant's opinion, the current aged care facility was inconsistent with the existing residential neighbourhood character of the area. The land is in the Low Density Residential Zone and, pursuant to the policy in clause 22.02 of the Banyule Planning Scheme ("Scheme"), the area is in Bush Woodland Precinct 2 for which a preferred future neighbourhood character is expressed. The Applicant contends that the proposed expansion will further deteriorate the existing situation. The Applicant regards the extent of planting in the garden strip area to be insufficient to mitigate the visual impact of the new east wing.
The Respondent maintained that the Applicant's concerns were related to property law and not appropriately before the Tribunal in this proceeding; that it is not before this Tribunal to determine whether an easement has been breached or what is the interpretation of the correct scope or operation of an easement. In any event, the Respondent argued that Crupi currently enjoys the right to access Main Road via the Yellow Hatched Easement. The Respondent essentially contended that the Applicant's grounds regarding neighbourhood character and the adequacy of the extent of landscaping in the garden strip was a contrivance designed to keep the proceeding on foot, whereas their grievance remained of a property law nature. As such, the application should be summarily dismissed or struck out.
Axicom
The Bush Woodland Precinct 2 emphasises the role played by vegetation and landscaping in maintaining and enhancing the indigenous vegetation dominated vistas, streetscapes and backdrops. Further, the intention is to ensure buildings and extensions do not dominate the landscape and do not adversely affect the outlook and amenity of neighbouring dwellings. The message is that built form should be integrated with the topography of the land and views to it softened by vegetation including canopy trees.
I regard the Applicant's question involving the ability of the Proposed E-3 area to be planted, in light of it being an easement of way, to be a reasonable one. Notwithstanding that there might not be assets located in that area, Proposed E-3 will still be an easement that allows access and it is appropriate to consider whether planting in that area will prevent the access occurring.
Further, the Applicant's concern as to the ability of the vegetation planted in the garden strip area to effectively screen the eastern wing extension is also reasonably founded, given the zone and neighbourhood character precinct of the land.
There is no assertion - nor could there be on the facts - that the Applicant brings this application to secure a commercial advantage. Accordingly, the comments in Axicom that go to that quite specific matter are not brought into play. To the extent that it might be thought that the Applicant brings this proceeding to maintain or further the objective of resisting the formal creation of easement rights in favour of Crupi over the Applicant's land, this amendment application - even if approved - will not impact upon that issue. The approval of the amendment application by the Tribunal (if this is the ultimate decision on the merits) will simply provide planning approval for the extension to the building and the other matters for which planning permission was sought. The garden strip land has already been included in Lot 1 on the Proposed POS, meaning that if the Crupi land is landlocked, to the extent that this is within the control of planning, this has already occurred by virtue of the Realignment Permit. Once that plan of subdivision is registered, that process will be complete. I understood that the registration of the plan - and the sale of the garden strip land - was commercially contingent upon the proposed amendment being approved.
The Respondent indicated at the preliminary hearing that they understood that the Tribunal, in assessing this amendment application, would not be making a ruling about the operation of any of the easements in question.
Overall, having heard from the parties and reviewed the material provided, I do not regard this as a proceeding that is obviously unsustainable in fact or in law, can on no reasonable view justify relief, or bound to fail. I am not persuaded that this application meets the very high bar of section 75 of the VCAT Act. Accordingly, for the reasons given above, I decline to strike out or summarily dismiss VCAT Application P463/2020. This matter will proceed to the compulsory conference scheduled for 30 September 2020 at 10:00am.