1. This proceeding is brought under s 305A of the Water Act 1989 (Vic) ('Act') by Parklea Pty Ltd ('Parklea') seeking a declaration that:

the decision of the Minister for Water ('Minister') made on or around 13 February 2023 purportedly pursuant to s 235 of the Water Act to appoint Southern Rural Water ('SRW') as an authority to decide if a right of access should be granted over land ('decision') owned by the Applicant described in the Register as Volume 12024 Folio 433 being part of Lot Q on plan of subdivision 721481K, Officer South ('applicant's land') is invalid, void and of no effect.

1. In support of its declaration, Parklea says:
   1. the statutory preconditions set out in ss 234 and 235 of the Act were not met as there was no lawful notice given, nor was there any genuine attempt to reach agreement;
   2. the decision was made for an improper purpose;
   3. the Minister failed to take into account relevant considerations; and
   4. the applicant was denied procedural fairness.
2. The Minister for Water ('Minister') and the respondent, 100 Lecky Road Pty Ltd ('Lecky') say there is no basis for the making of the declaration or alternatively, that in the exercise of discretion, I should decline to grant the relief sought by the applicant.
3. The parties have filed a joint statement of facts agreed and not agreed ('joint statement')[1]. With the exception of items 11 and 22 where the Minister abstains from agreement or disagreement, all other facts are agreed between the parties. Items 11 and 22 relate to communication between Parklea and Lecky.
4. The central issue in dispute in this proceeding is the appointment of a body namely, Southern Rural Water ('SRW') who will ultimately make a decision about access over Parklea's land. That access is sought by Lecky to drain its land.
5. Having considered the submissions of the parties and the material before me, for the reasons that follow, I refuse to make the declaration sought by Parklea.

1. Lecky is the registered proprietor of land known as Lot G on Plan of Subdivision 906180 ('Lecky land'). The Lecky land and surrounding lots may be used and developed under various permits including planning permit T200562. This permit allows for a multi-staged subdivision of the Banyan Place Estate ('Banyan permit').
2. Parklea is the registered proprietor of land known as Lot Q on Plan of Subdivision 721481 ('Parklea land') who entered into a contract of sale for the Parklea land on 15 November 2023. Parklea and its associated entity can develop Lot Q and surrounding land under various permits.
3. Planning permit T100588 allows for a multi-stage subdivision of the Kaduna Park Estate ('Kaduna permit').
4. Both the Banyan Place Estate and Kaduna Park Estate are located within the Cardinia Road Employment Precinct Structure Plan ('PSP'). Certain areas within the PSP are identified as drainage waterways and includes part of the Parklea land. The waterway/drainage corridor within the PSP area will ultimately vest in Melbourne Water ('MW'). These drainage works required form part of the Cardinia Industrial Development Services Scheme ('DSS'). MW is the relevant drainage authority for the DSS.
5. Banyan Place Estate is located to the north or upstream of the Parklea land.
6. On 12 September 2022, after some communications between Lecky and Parklea, Lecky sent an email to Parklea attaching a notice stated to be under s 234 of the Act ('Notice'). On 13 September 2022, Lecky sent Parklea an email attaching a notice stated to be under s 234 of the Act and dated 12 September 2022.[2]
7. Between 14 September 2022 and 15 December 2022, Lecky and Parklea exchanged correspondence.
8. On 20 October 2022, Lecky wrote to the Minister seeking appointment of an authority under s 235 of the Act. SRW was appointed by the Secretary of the Department of Energy, Environment and Climate Action[3] ('DEECA') on 13 February 2023 as the authority to decide the issue.
9. On 6 April 2023, Parklea wrote to Lecky, the Minister and SRW stating that:
   • the notice under s 235 of the Act was invalid, void and of no effect;
   • the decision to appoint SRW was invalid, void and of no effect; and
   • request that SRW take no further action.
10. On 20 July 2023, Parklea filed this proceeding with VCAT.

1. I now set out ss 233, 234 and 235 of the Act as these are referred to often in my reasons:
2. Section 233 of the Act states:

(1) In this Part, a reference to the owner of land includes a reference to - > > > (a) a person who acts with the consent of the owner; and > > > > (b) a committee as defined in section 244; and > > > > (c) a person who holds the land as executor or administrator or trustee. > > (2) An agreement entered into under this Part by a person acting with the consent of the owner of land must be taken to have been entered into by that owner. > > (3) An agreement entered into by a committee must be taken to have been entered into by each participating landowner. > > (4) Nothing in this Part empowers an Authority to seek or obtain a right of access in favour of land, whether or not that land is owned by the Authority. > > (5) In this Part, a reference to an agreement under section 234 includes a reference to a declaration under section 234(5).

(1) An owner of land who seeks access for drainage, water supply or salinity mitigation purposes over land owned by another person may give notice to - > > > (a) the other owner; and > > > > (b) to the occupier of the land over which access is sought, if the owner is not the occupier. > > (2) Once notice has been given, the owner giving notice must try to arrange that access by agreement with the other owner. > > (3) An agreement must - > > > (a) specify any compensation agreed to; and > > > > (b) clearly describe the access agreed to; and > > > > (c) be accompanied by a map of the land which shows the location and measurements of the proposed works. > > (4) An agreement made between the owner of one or more parcels of land and another owner must specify each parcel of land over, or in favour of, which the right of access is created. > > (5) An owner of more than one parcel of land who wishes to create a right of access over one parcel in favour of another parcel may declare in writing in the form approved by the Minister that such right of access has been created.

(1) An owner of land who seeks access for drainage, water supply or salinity mitigation purposes over land owned by another person and who gives notice under section 234(1) may, if agreement has not been reached with the other owner about access within one month after service of the notice on the other owner, apply to the Minister for the appointment of an Authority to decide the issue. > > (2) The Minister must make an appointment if an application is made. > > (3) In deciding whether a right of access should be created over land, the appointed body must have regard to the following - > > > (a) whether any damage will be caused to the property of the owner of the land; > > > > (b) whether that owner may be fully compensated for that damage by money or otherwise. > > (4) If the appointed body decides that a right of access should be created over land, that body must decide the nature and extent of that right and of the works that may be constructed on that land. > > (5) A decision of the appointed body is, subject to subsection (6), binding on the parties and may include any order that the body thinks fit for the payment of compensation. > > (6) A person whose interests are affected by the decision of the appointed body under subsection (1) may apply to the Tribunal for review of the decision. > > (6A) An application for review must be made within28 days after the later of -

(a) the day on which the decision is made;

(b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.

(7) On an application for review under subsection (6) the Tribunal may make any order that it thinks fit for the payment of compensation.

1. This decision is structured as follows:
   1. Submissions regarding principles of statutory construction including;
      1. General submissions;
      2. Maxim; Generalia specialibus non derogant
      3. Principle: Least interference
      4. Historical and other contextual considerations;
      5. Statutory context;
      6. Purpose of right of access
   2. VCAT determination: statutory construction;
   3. Submissions on Ground 1 - Statutory preconditions not met;
      1. Lawful notice was not given;
      2. There was no genuine attempt to reach agreement;
   4. VCAT determination on Ground 1;
   5. Submissions on Ground 2 - Improper purpose;
   6. VCAT determination on Ground 2;
   7. Ground 3 - Failure to take into account relevant considerations; (not pursued by Parklea);
   8. Submissions on Ground 4 - Breach of procedural fairness;
   9. VCAT determination on Ground 4.

SUBMISSIONS - PRINCIPLES OF STATUTORY CONSTRUCTION

1. Parklea relies upon the decision in Mason & Ors v Head, Transport for Victoria[4] (Mason) where the Supreme Court of Victoria, Court of Appeal ('COA') summarised the relevant principles of statutory construction through the leading cases. At paragraphs 24 and 27 the COA stated:

1. The relevant principles of statutory construction are well established. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory), Hayne, Heydon, Crennan and Kiefel JJ said:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

2. In SZTAL v Minister for Immigration and Border Protection, the High Court (Kiefel CJ, Nettle and Gordon JJ) again emphasised the importance of text, context and purpose:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

3. In Project Blue Sky Inc v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ also gave guidance with respect to the proper construction of the statutory text, explaining that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute and emphasising that the meaning of the provision must be determined by reference to the language of the instrument viewed as a whole. Their Honours continued:

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.

1. Section 35 of the Interpretation of Legislation Act 1984 further expressly provides that in the interpretation of the provision of an Act, a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object.

2. Parklea also relies on CIC Insurance Ltd v Bankstown Football Club Ltd[5] (CIC Insurance) and Commissioner of State Revenue v EHL Burgess Properties Pty Ltd[6] (Commissioner of State Revenue) to submit that context includes the existing state of the law, the historical statutory scheme and the mischief which the state was intending to remedy. The relevant passages from _CIC Insuranc_e and Commissioner of State Revenue are now extracted respectively:

It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.

It is clear that the 'context' which a court is required to consider as part of the 'modern approach to statutory interpretation' encompasses the existing state of the law and the mischief which, by legitimate means, one may discern the statute was intended to remedy. It is therefore not unusual for courts to examine a prior statutory provision or legislative scheme dealing with the same subject matter to enable them to construe a current statute. The High Court and this Court have done so on previous occasions. It has been observed that the history of a legislative scheme may assist in ascertaining the legislative intent.[7] It has also been observed that, by comparing succeeding legislative schemes that deal with a single subject, the function of particular provisions within each scheme is illuminated. For example, the introduction of particular provisions may be seen to have particular significance in the light of what has been retained and what has been removed.

(footnotes omitted)

1. Neither Lecky nor the Minister raise any concerns about the principles of statutory interpretation except to say that the task starts with the text of the relevant legislation as set out in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory)[8] (Alcan). Both also accept that context including the legislative history and extrinsic maybe relevant however, they are of limited assistance in this case because the statutory text, it context and purpose are clear from the Act.

Maxim: Generalia specialibus non derogant: the general does not derogate from the special

1. Parklea relies on the following principle or maxim of statutory construction: generalia specialibus non derogant, the general does not derogate from the special. This maxim is also known as the Anthony Hordern principle.[9] Parklea says that the rights capable of being created under s 235 of the Act include rights that are analogous to rights under s 36 of the Subdivision Act 1988 (Vic) ('SD Act'). For completeness, s 36 of the SD Act provides that:

1. Power of owner to acquire or remove easements

(1) If - > > > (a) when considering a proposed amendment to a planning scheme or an application for a permit or to amend a permit; or > > > > (b) in implementing an amendment to a planning scheme; or > > > > (c) in a condition in a permit - > > the Council or a referral authority states in writing that it considers that the economical and efficient subdivision or consolidation (whether existing or proposed) or servicing of, or access to, land covered by the amendment, proposed amendment, application or permit requires the owner of land to -

(d) remove a right of way over the owner's land; or

(e) acquire or remove an easement over -

(i) other land in the subdivision or consolidation; or

(ii) other land in the vicinity -

and that the removal or acquisition will not result in an unreasonable loss of amenity in the area affected by the removal or acquisition, the owner may apply to the Victorian Civil and Administrative Tribunal for leave to remove the right of way or acquire or remove the easement compulsorily.

(1AA) In conferring powers on a Council or referral authority under subsection (1) it is the intention of Parliament that, in considering a matter for the purposes of that subsection, the Council or referral authority should make an assessment of the engineering and amenity aspects of the matter, is not bound to notify anyone affected or to hear objections, but objections to that assessment may be raised before the Tribunal.

(1A) The Tribunal may give leave subject to any conditions it thinks fit.

(2) If leave is given -

(a) in accordance with any conditions to which the leave is subject, the owner may compulsorily acquire the easement and -

* * * * *

(ii) the Land Acquisition and Compensation Act 1986 applies to the acquirement of the easement, and for that purpose this section is the special Act and the owner is the Authority; or

(b) in accordance with any conditions to which leave is subject, the owner may submit for certification and lodge for registration a plan to remove the easement and -

(i) unless the Tribunal otherwise directs, the consent of any person having an interest in land benefited by the easement is not required for its removal, and section 22(1)(c)(d) and (da) does not apply to the removal of the easement; and

(ii) Parts 3, 4, 6, 7, 10 and 11 of the Land Acquisition and Compensation Act 1986 apply to claims for compensation on the removal of the easement by persons having an interest in land benefited by the easement as if the owner who removed the easement had acquired by compulsory process an interest in land benefited by the easement, and for that purpose this section is the special Act and that owner is the Authority.

26 Parklea submits that s 36 of the SD Act is 'tailor-made' or the specific provision and that ss 234 and 235 of the Act are the general provisions that provide a process for the acquisition of private easements. Further, it says that the SD Act was passed in 1988 whereas the Act which was passed in 1989 which Parklea says means that s 36 of the SD Act operates at law to limit the general process under ss 234 and 235 of the Act to the extent of any incompatibility.

1. Parklea says and Lecky accepts that the process under ss 234 and 235 of the Act create a right that is 'akin' to a statutory easement and thus, it says Parklea's submission ought be preferred.
2. Parklea also contends that to the extent Lecky is acting at the behest of MW in carrying out public infrastructure under the Banyan permit, the specific process under ss 130 and 136 of the Act that allows for that to occur should be used because these two sections operate to limit the general process available under ss 234 and 235 of the Act.
3. Again, for completeness, ss 130 and 136 of the Act provide:

(1) An Authority may purchase or compulsorily acquire any land which is or may be required by the Authority for or in connection with, or as incidental to, the performance of its functions or the achievement of its objects. > > (2) The Land Acquisition and Compensation Act 1986 applies to this Act and for that purpose - > > > (a) the Water Act 1989 is the special Act; and > > > > (b) the acquiring Authority is the Authority; and > > > > (c) land includes - > > > > > (i) any land that - > > (A) is actually comprised by measurement in the land described in the Crown grant of the land; and > > (B) forms part of the bed and banks of a watercourse; and > > (C) is declared to remain the property of the Crown by section 385 of the Land Act 1958; and

(ii) strata above or below the surface of land and easements and rights to use land or strata above or below the surface of land.

(3) If an Authority acquires any right in the nature of an easement or purporting to be an easement, that right must be taken to be an easement even though there is no land vested in the Authority which is benefited or capable of being benefited by that right.

(4) If any land to be acquired by an Authority is held by a licensee or lessee of the Crown, the Authority must notify the Department Head of its intention to acquire the land, and must include in the notice a description of the land.

(5) If a Crown grant is issued to any person of the land out of which, in respect of which or over which any land or easement has been compulsorily acquired, the land or easement so acquired must be taken to be exempted from the grant, and remains vested in the Authority.

(6) If any land acquired by an Authority is Crown land other than that referred to in subsection (4), the Authority must, as soon as practicable after the acquisition, notify the Department Head of the acquisition.

...

(1) If a proposal for subdivision of land is referred to an Authority under the Planning and Environment Act 1987, the Authority may require the creation of easements or reserves, or both, for the use of the Authority for any of the following purposes -

(a) pipelines or ancillary purposes;

(b) channels;

(c) carriageways;

(d) waterway management;

(e) drainage.

(2) The creation of an easement or a reserve for a purpose specified in subsection (1) gives the Authority for whose use it is created the rights prescribed in relation to an easement or reserve created for that purpose.

1. Parklea relies upon various extracts from Statutory Interpretation in Australia[10] that summarise the law in respect of this principle of statutory construction, which I do not recite.

1. Lecky highlights that maxims of statutory interpretation are 'tools of analysis' rather than 'masters' as articulated in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (KDSP):[11]

At the end of the day, it is important to keep in mind that all of the applicable principles of statutory construction are not "masters" but rather "tools of analysis" helpful in the task of discerning Parliament's intention: ...The presumption that a specific provision ought not be deprived of its effect by a general provision may be rebutted and possible incoherence may be denied once Parliament's purpose is properly revealed.

1. Further, Lecky says the mere existence of an overlap in subject matter is not of itself sufficient to demonstrate conflict in the provisions. Lecky says that Parklea has made the same 'mistakes' as made by the respondent in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom[12] (Nystrom). At paragraphs 59 and 61, Gummow and Hayne JJ said:

Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the "same power" (63), or are with respect to the same subject matter (64), or whether the general power encroaches upon the subject matter exhaustively governed by the special power (65). However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.

...

The defect in that submission is that it fixes upon only one practical consequence of the respective orders. It does not address whether the subject matter of the power is in law substantially the same. However, for the reasons which follow, the two powers do not deal with the same subject matter so as to attract the operation of the maxim expressum facit cessare tacitum and the reasoning which underpins Anthony Hordern and other decisions. The scheme of the Principal Act does not treat as having the one identity deportation and cancellation of a visa. This is so notwithstanding that, by reason of other provisions of the Principal Act, the exercise of both powers may well result in the same practical outcome. The ambit of the power to deport is not wholly subsumed within the ambit of the power to cancel a visa by reference to the character test in s 501(2).

1. Lecky says that Parklea has treated the exercise of any one of a number of powers for acquisition of easements or similar over land as determinative that the powers in the Act and the SD Act are the same. Upon a proper examination of these Acts including their purposes it cannot be said the subject matter of each power is 'substantially the same'.
2. Lecky says that while each provision could be used to create an easement or similar interest in land, each provision has a distinct purpose that is subject to different criteria. Lecky relies on the following matters to highlight the differences between the Act and s 36 of the SD Act:

1. section 130 of the Act: 1. is a process only available to an authority and not to a private land owner; 2. the authority must require the land for or in connection with, or as incidental to, the performance of its functions or the achievement of its objects; and 3. is not limited to the acquisition of easements and can include the acquisition of freehold land. 2. section 136 of the Act: 1. allows the creation of easements and/or reserves for the use of an authority for various purposes including drainage; and 2. this process is not available to a private individual.

1. section 36 of the SD Act: 1. provides the ability for an owner of land to acquire or remove easements over another's land if a relevant body states in writing that the economical and efficient subdivision, consolidation, servicing of, or access to land requires the creation or removal of an easement. This is also subject to the proviso that the removal or acquisition of the easement will not result in an unreasonable loss of amenity in the area affected by the removal or acquisition. Notably, the Land Acquisition and Compensation Act 1986 (Vic) applies to s 36 of the SD Act; 2. the process is also limited and can only be undertaken in the context of planning permit or planning scheme amendment; 3. it is broader in application than s 234 of the Act because it allows the removal of easements; 4. the leave of VCAT is required.
2. In consideration of the above, Lecky says that whilst each of the above provisions can be used to acquire an easement the subject matter of each provision is not 'substantially the same' because each confers rights on different persons to be exercised in various circumstances and in accordance with statutory criteria. Thus, there is no repugnancy or inconsistency between ss 234 and 235 and ss 130 and 136 of the Act or s 36 of the SD Act.

1. The Minister says the principle of statutory construction generalia specialibus non derogant, the general does not derogate from the special must be rejected because the subject matter is different.
2. The Minister notes that the HCA stated the following in relation to the Anthony Hordern principle:[13]

... When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed it excludes the operation of general expressions in the same instrument' which might otherwise have been relied upon for the same power...

1. The Minister also relies upon Nystrom (extracted earlier) where the HCA the court concluded that the Anthony Hordern principle was applicable where it was possible to conclude that the statute confers a single power to perform the relevant action.[14] Further, the HCA concluded that the powers being considered in Nystrom both dealing with the power of the relevant Minister to exclude a person from Australia because of conviction for criminal behaviour, but the powers had different purposes, different criteria to exercise and different consequences if exercised.[15]
2. Applying the conclusions of the HCA to the facts in this proceeding, the Minister submits that:
   1. section 36 of the SD Act:
      1. provides for an acquisition or removal of an easement. Section 235 of the Act is concerned with rights of access and not the creation of an easement. A right of access is not the same as an easement;
      2. does not authorise works that can occur within the easement whereas s 235(4) of the Act specifically allows a consideration of the nature and extent of works that may be constructed on land;
      3. the right of access can be varied or revoked by agreement;
   2. the provenance of s 36 of the SD Act is different to that of Part 12 of the Act. Section 36 of the SD Act provides a complex series of steps whereas Part 12 of the Act is relatively simple, quick and economic mechanism for resolving disputes; and
   3. the power under Part 12 of the Act is arguably more 'specific' because it is confined to rights of access for drainage, water supply or salinity mitigation rather than the creation of an easement more broadly as contemplated by s 36 of the SD Act.
3. The Minister also says that Parklea's submissions confuse concepts of implied repeal of an earlier statute by a later statute because the SD Act was enacted in 1988 and before the Act in 1989. Arguably, it would be ss 234 and 235 of the Act that would impliedly repeal s 36 of the SD Act.

1. Parklea says that because s 235 of the Act is an administrative mechanism for the compulsory acquisition of a property right without the consent of the servient owner, if ambiguity arises, VCAT should adopt a narrow construction that is, use the 'least interference principle'. In support of this, Parklea relies upon R&R Fazzolari Pty Ltd v Parramatta City Council[16], (R&R Fazzolari) where French CJ HCA said:

The terminology of "presumption" is linked to that of "legislative intention". As a practical matter it means that, where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights. That approach resembles and may even be seen as an aspect of the general principle that statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. It operates in the United Kingdom as a manifestation of a "principle of legality" and has been described in Australia as an aspect of the rule of law.

1. It is Parklea's position that s 235 of the Act allows an owner a right to access and to construct works on another's land and allows an interference of property rights, in accordance with the least interference principle, the provision should be narrowly construed.

1. Lecky says that the least interference principle does not support Parklea's position because the HCA made it clear that this principle does not permit a conclusion that is different from the unambiguous words of the statute. And further that French CJ in R&R Fazzolari stated:[17]

The attribution by Blackstone, of caution to the legislature in exercising its power over private property, is reflected in what has been called a presumption, in the interpretation of statutes, against an intention to interfere with vested property rights. It was expressed by Griffith CJ in Clissold v Perry, a land resumption case, thus:

"In considering this matter it is necessary to bear in mind that it is a general rule to be followed in the construction of Statutes such as that with which we are now dealing, that they are not to be construed as interfering with vested interests unless that intention is manifest."

The presumption has been restated on more than one occasion in this Court. That does not, of course, authorise the court to put to one side "the unambiguous effect of the words which the Parliament has seen fit to use".

1. Thus, Lecky says the least interference principle is of no use in this proceeding.

Historical and other contextual considerations

1. Parklea says the notice given by Lecky to the Minister was not for 'drainage' purposes as contemplated by ss 234 and 235 of the Act because of the text of Part 12 of the Act and its historical context.
2. Parklea contends that the phrase 'drainage purposes' as contemplated by ss 234 and 235 of the Act is concerned with naturally occurring broadacre flows. It arrives at that submission relying on the legislative history with respect to Part 12 of the Act.
3. I provide a brief summary of Parklea's submissions regarding the legislative history leading to the enactment of the Act in 1989:

1. the first Victorian statute that dealt directly with drainage was the Land Drainage Act 1864. The second reading speech suggests that persons contemplated in securing access over another's land would be market gardeners and farmers; 2. the second statute was the Drainage of Land Act 1890. This statute was considered in Madden v Coy[18] where the Supreme Court of Victoria ('SCV') concluded that this statute was: 1. a 'scheme for the compulsory purchase of the right to construct and use a drain on the servient tenement'; 2. provided a 'right to use the drain for the purpose of draining the lands of the dominant tenement'; and 3. the process was described as a process of 'compulsory acquisition';

1. the third statute is the Drainage of Land Act 1958 which was described as an Act that consolidated 'the drainage of land for agricultural and other purposes'; and

1. Lastly, the Drainage of Land Act 1975 ('DOLA') was said by the SCV to be 'essentially directed to dealing with the control of surface waters, mainly in country lands and in particular with the problems of diversion of or interference with flood waters by land owners...';[19]. Further, this Act contained a schedule where reference was made to farmers and market gardeners.
2. Parklea says that because the word 'drainage' is not defined in the Act itself, I should consider the legislative history to conclude that ss 234 and 235 of the Act is directed towards naturally occurring broadacre flows that require water to be moved through another's land but not stored on it.
3. Parklea also notes that none of the previous Acts contained any equivalent provision which provides for the Minister to appoint an authority to decide on a right of access over another's land.

1. Lecky disagrees that 'drainage' should be narrowly construed by reference to the historical context that led to the enactment of the Act. Lecky relies on the text of ss 234 and 235 and their purpose and submits that a broader interpretation of 'drainage' is required.
2. Notably, Lecky says, if the drafters of this Act had intended the right of access to be confined in the manner described by Parklea, they would have specifically required that to be the case. Rather, the drafters did not define 'drainage' and did not include any limitation regarding broadacre farming or market gardeners or farmers.

1. The Minister says the task of statutory construction must begin with the text of the Act itself and in this case by attributing legal meaning to ss 234 and 235 of the Act and applying that construction to the facts in this proceeding.
2. Nonetheless, the Minister says that Parklea's argument with respect to the historical context must fail and in support of that, it is said that:
   1. the removal of the term 'agricultural purposes' from the relevant objectives of the Act indicates Parliament did not intend that to be part of the Act;
   2. the purposes of the historical legislation was not limited to agricultural purposes and referred to 'other purposes';
   3. simply because historical legislation contains specific meanings that did not contemplate water flows from the subdivision of land does not lead to a conclusion that the word 'drainage' is to be interpreted in that historical context. It means that the meaning changes over time to cover facts and concepts that shift over time and thus, shift the ordinary meaning or the general understanding of that word; and
   4. the cases relied upon by Parklea regarding the historical legislation do not support Parklea's interpretation of drainage because they need to be properly understood in their contexts that is, liability arising from the flow of water. Thus, it cannot bear on the interpretation of a separate legislative regime that governs the right of access over another's land.
3. The Minister says there is no basis for reading in words that do not appear in s 234 of the Act by reference to repealed legislation.

1. Parklea made several submissions with respect to the statutory context to support its application for declaration and the grounds underpinning that application. I now summarise these below and will then refer to these submissions as necessary when discussing the grounds of invalidity raised by Parklea.

1. Parklea contends the 'issue' in s 235(1) of the Act is whether a right of access should be created over land for a relevant purpose. Further, Parklea submits the power given to the Minister to appoint an authority is limited to the issue. Parklea says the appointment of SRW in this proceeding is not constrained to the issue or to the nature and extent that access and works may be constructed on the land. Thus, the appointment of SRW is said to be beyond power.

1. The Minister must appoint an authority to decide the issue within one month after notice is given under s 234 of the Act. Parklea says the failure to reach agreement in s 235(1) of the Act when properly understood is the failure to attempt to reach agreement set out in s 234(2) of the Act.
2. Sections 234 and 235 confer a discretion about the right of access and whether it should be created, and if so, on what terms.

What is meant by 'access' and 'drainage purposes'

1. 'Access' is not defined thus, the ordinary meaning is relevant, which Parklea says means in simple terms 'right of entry'. Further, such access must be for one of the statutory purposes.
2. Parklea says that 'drainage purpose' is a purpose intended to achieve the gradual movement of water off land and does not include the treating or storing of water. And, further, ss 234 and 235 of the Act do not confer a right to drain water onto another's land.
3. Parklea contends that Lecky is seeking access to its' land to drain onto, including by construction of a large concrete basin and settling ponds. Further, Parklea says that a drainage purpose does not yet exist, and that Lecky already has a drainage basin on the south-east area of its land.

1. Parklea says the works authorised by s 235 of the Act must serve the right of access over the land and further, such works must serve a drainage purpose. Parklea says that a sediment basin does not serve a drainage purpose because it is not concerned with the 'movement' of water but is 'treating' the water.
2. Parklea emphasises the use of the word 'necessary' in ss 238(1) and 239(1) of the Act. These sections of the Act provide:

(1) The owner of land in favour of which a right of access is created may enter the land over which the right of access is created to install, remove, alter or maintain any works on the land over which the right of access is created that are necessary for the use of the right of access.

1. Breaking up roads in maintaining etc. works

(1) The owner of land in favour of which a right of access is created may, subject to this Part, do any thing necessary to construct, maintain and alter works in the land over which the right of access is created, including breaking up the surface of any road.

3. To that end, Parklea contends that the word 'necessary' means 'essential' and relies on Body Corporate No 41342R v Sheppard[20]. Further, Parklea says the Minister should have considered whether the works were 'essential' to drain water from the Lecky land to the Parklea land to meet the requirements of s 235 of the Act.
4. Parklea contends there is a lack of certainty or finality in the proposed works and thus, SRW cannot assess the application to resolve the scope of works or reach conclusions on damages and compensation.

1. Parklea submits that the text and context of Part 12 of the Act demonstrates it was not intended to be used as a mechanism to address future increased flows and associated drainage requirements.
2. Further, Parklea asserts that the term 'drainage' purposes as contemplated by ss 234 and 235 of the Act are concerned with naturally occurring broadacre flows.

1. Parklea says that Part 12 of the Act provides an opportunity for access for upstream landowners to achieve a private drainage solution. The works required by Lecky are part of the DSS where the final scheme would vest in MW as part of the precinct wide solution. An authority has many opportunities available to it to create, reserve or acquire an easement on private property. Sections 234 and 235 of the Act should not be used to avoid a public authority from exercising its functions for the provision of public infrastructure.
2. Parklea contends the structure of the Act is of assistance because Parts 10, 11 and 11A are all directed at functions of water authorities whereas Part 12 is not available to those authorities. Noting that s 136 of the Act provides an express mechanism for the creation of easements or reserves.
3. Thus, it is contended the real purpose for the right of access is for the ultimate precinct wide DSS that will vest in MW. Parklea says that process should be undertaken by MW using different provisions of the Act.

VCAT DETERMINATION: PRINCIPLES OF STATUTORY CONSTRUCTION

1. There is no debate with respect to the principles of statutory construction which relying on Mason can be summarised as:
   • the task of statutory construction must begin with the text itself;
   • historical considerations and extrinsic materials cannot be used to displace the clear meaning of the text;
   • the meaning of the text may require some consideration of the context, including the general purpose and policy of a provision, particularly the mischief it is seeking to remedy;
   • considerations of context and purpose recognise that another meaning may be suggested from its ordinary meaning, and if so, the ordinary meaning must be rejected; and
   • the primary object is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
2. For completeness, I also agree with Lecky's submissions that maxims of statutory construction are 'tools of analysis' to discern Parliament's intention rather than masters dictating a particular statutory construction.
3. Before, I turn to each of the grounds of invalidity relied upon by Parklea, I start with an overall analysis of Part 12 of the Act as relevant to this proceeding to ascertain its purpose and meaning.

1. The heading to Part 12 of the Act is 'Access over lands' and s 233 deals with definitions relevant to that Part of the Act.[21] Sections 234 and 235 of the Act provide a process for obtaining access to another person's land with or without the agreement of that person.
2. Section 236 of the Act contains the mechanism for the registration of an agreement for a right of access or a decision for a right of access with the Registrar of Titles.
3. Section 237 of the Act provides a statutory process for the revocation or variation of the right of access either by agreement or otherwise.
4. Sections 238 and 239 of the Act provide the obligations of the owner of land in favour of which a right of access is created including the ability for the owner land to recover reasonable costs.
5. Section 240 of the Act is a penalty provision where a person must not wilfully obstruct any person carrying out works under Part 12 or wilfully damage or obstruct the works.
6. Section 241 of the Act contains the processes for a right of access over public land.
7. Section 242 of the Act allows for a joint right of access that is, it allows for more than one person to give notice under s 234 of the Act.
8. Section 243 allows cost recovery by the authority from the person who applied for the appointment and a right of review to VCAT if there is a dispute regarding the quantum of costs.
9. Sections 244, 245 and 246 of the Act contain a comprehensive process for voluntary community agreements to deal with drainage or salinity problems in an area or a water supply for farming operations. A community agreement must provide for a committee to act on behalf of landowners.
10. I agree with Parklea that Part 12 of the Act provides a process for the creation of a right of access for landowners seeking to achieve a private drainage solution. That much is clear from the text of ss 234 and 235 of the Act and from their context in Part 12 of the Act. Further, that is reinforced by ss 244, 245 and 246 of the Act. This is also supported by Part 7 of the Act and the general powers of authorities in respect of acquisition of land, and creation of easements and reserves.[22] Lastly, s 233(4) of the Act makes this clear as it states:

(4) Nothing in this Part empowers an Authority to seek or obtain a right of access in favour of land, whether or not that land is owned by the Authority.

1. However, I disagree with Parklea that the real purpose of the right of access the subject of this proceeding is for the precinct wide DSS rather than drainage for Lecky's land. I deal with this issue later in my reasons.

1. Turning then to the construction of the specific provisions before me, the word 'drainage' is not defined in the Act at all. It is not defined in the general definitions s 3 of the Act nor is it defined in s 233 of the Act that applies to Part 12. There is nothing in the language of Part 12 that directs guidance on the interpretation of 'drainage' to have regard to previous legislation dealing with drainage. Thus, I turn to the ordinary meaning of 'drainage' and 'purpose' from the Macquarie Dictionary which provide:[23]

Drainage

noun 1. the act or process of draining.

2. a system of drains, artificial or natural.

3. drainage basin.

4. that which is drained off

...

Purpose

noun 1. the object for which anything exists or is done, made, used, etc.

2. an intended or desired result; end or aim.

3. intention or determination.

4. that which one puts before oneself as something to be done or accomplished.

...

1. Having regard to its ordinary meaning 'drainage' means the act or process of draining and in turn the word 'draining' is not defined in the Macquarie Dictionary. However, 'drain' is defined as:[24]

Drain

verb (t) 1. to draw off gradually, as a liquid; remove by degrees, as by filtration.

2. to draw off or take away completely.

3. to withdraw liquid gradually from; make empty or dry by drawing off liquid.

4. ...

-verb (i) 5. to flow off gradually.

6. to become empty or dry by the gradual flowing off of moisture.

-noun 7. that by which anything is drained, as a pipe or conduit.

8. ...

12. act of draining.

1. Having regard to the ordinary meaning of 'drainage' and the phrase 'act of draining', that includes the removal of liquid or moisture by drains whether naturally occurring or created and thus, artificial and by a basin that allows for the collection of the liquid/moisture.
2. The word 'purpose' when used with another word preceding it such as 'drainage' means the intention, intended outcome or desired result and thus, supports a future as well as a present or existing need. Thus, I do not accept Parklea's contention that the purpose must exist at the time the notice is sent.
3. There is nothing in the ordinary meaning of the words 'drainage' or 'purpose' that supports Parklea's contention that 'drainage purpose' is concerned with naturally occurring broadacre flows. In fact, the ordinary meaning of 'drainage' includes a systems of drains that are artificial or not naturally occurring.
4. There is nothing in the text of ss 234 and 235 of the Act that would sensibly lead to the interpretation urged by Parklea.

1. I next turn to the context in which 'drainage' is found in Part 12 of the Act. Apart from ss 234 and 235 of the Act the word 'drainage' is found in ss 244, 245(5) and 246 of the Act. As stated earlier, these three sections together form a comprehensive process for voluntary agreements to deal with drainage or salinity problems in an area or for the supply of water whose primary purpose is for farming.[25]
2. Notably, the process for entering into a voluntary agreement for the supply of water is linked to the use of that water for farming purposes. That same limitation does not apply to such agreements in relation to drainage or salinity matters.
3. Given that limitation exists in some of the provisions of Part 12 of the Act but not all, Parklea's contention that 'drainage purpose' is concerned with naturally occurring broadacre flows is not supported. Similarly, s 244(1)(b) of the Act refers to the drainage of an area. That limitation does not exist in ss 234 and 234 of the Act.

1. I have previously dealt with the purpose of Part 12, and I now turn to the purposes of the Act which state (as relevant):

Purposes

This Act has the following purposes -

(a) to re-state, with amendments, the law relating to water in Victoria;

(b) to provide for the integrated management of all elements of the terrestrial phase of the water cycle;

(c) to promote the orderly, equitable and efficient use of water resources;

(d) to make sure that water resources are conserved and properly managed for sustainable use for the benefit of present and future Victorians;

(e) to maximise community involvement in the making and implementation of arrangements relating to the use, conservation or management of water resources;

(ea) ...

(i) to provide recourse for persons affected by administrative decisions;

(j) ...

1. Nothing in the relevant purposes of the Act is inconsistent with the ordinary meaning of 'drainage' nor does it support Parklea's contention with respect to the meaning of drainage.

1. Before turning to the historical legislation and the Victorian Law Reform Commission - Easements and Covenants Final Report 22 ('VLRC Report'), I refer to the second reading speech[26] for the Act which provides inter alia:

1. Parklea did not refer to the second reading speech for the current Act to aid in the interpretation of 'drainage' 'purpose' in the Act. There is nothing in the second reading speech that supports Parklea's contention that 'drainage purpose' is limited to naturally occurring broadacre flows. Rather there is recognition that the historical legislation was a consequence of Victoria's history including the gold rushes and associated town development. Consequently, that legislation did not provide a coherent management regime for water resources.
2. I also add that the second reading speech notes the process that was undertaken when the water legislation existing in 1984 was reviewed. This process entailed departmental officers, consultant and, industry working groups. The result was a proposal for a modern legislative framework contained in a discussion paper in September 1986 which culminated in six issues papers. The proposals contained in the issues papers were subject to extensive public consultation and finally an independent committee of review being established comprising individuals from industry, rural, conservation and legal backgrounds. Notably, this independent committee strongly endorsed the philosophy of a draft bill and recommended a redraft. This redraft was undertaken and resulted in the bill considered in the second reading speech.[27] The process resulted in a complete rewrite of the law relating to water resources and all functions including drainage.
3. It appears to me that a very comprehensive and rigorous process occurred with respect to this Act which does not support Parklea's contention that the meaning of 'drainage' should be taken to be as originally provided for in previous legislation regarding drainage.
4. Next, I turn to Parklea's submissions regarding whether the works proposed by Lecky are 'necessary', essential or presently required. I agree with the submissions of Lecky that this inquiry is relevant to the decision maker under s 235(3), (4), (5) and (6). There is nothing in the language of s 234 or 235(1) of the Act that requires the Minister to consider whether the proposed works are 'necessary', essential or presently required to appoint the relevant authority. I consider this matter in greater detail later in my reasons.
5. In summary I find that the phrase drainage purposes is to be given its ordinary meaning rather than a meaning from historical legislation. The phrase 'drainage purpose' in Part 12 of the Act means the removal of moisture or liquid by natural or artificial means and can include the collection of that moisture or liquid in a basin or artificial channel. The works proposed by Lecky readily fall into the definition of drainage purposes. These works are depicted on the plan attached to the Notice. The works include a sedimentation basin, pipes, diversion weir and a sediment drying area.[28]
6. Accordingly, the purpose for which Lecky's requires access over Parklea's land is drainage.

1. Parklea relied upon four grounds of invalidity, although it no longer presses one of its grounds.
2. I now set out each ground of invalidity, the specific submissions of the parties on each ground noting the general submissions summarised earlier in this decision followed by my determination on each ground.

SUBMISSIONS GROUND 1 - STATUTORY PRECONDITION NOT SATISFIED

1. Parklea says that two of the statutory preconditions have not been satisfied and therefore, the appointment of SRW by the Minister is beyond power. The two alleged jurisdictional facts are:
   1. there is no lawful notice given from Lecky to Parklea; and
   2. Lecky did not genuinely try to reach agreement with Parklea.

1. Parklea says that lawful notice was not given for the right of the access for drainage because:
   1. its purpose was not to drain naturally occurring broadacre flows:
   2. it did not seek to 'least affect' and permanently 'blights' its land;
   3. it was not for access 'over' land but rather 'onto' land;
   4. it is not Lecky's purpose but rather for MWs ultimate DSS for the precinct;
   5. the purpose did not and does not exist;
   6. the works are not necessary in that they are not 'essential' for the use of a right of access;
   7. the works are not certain; thus, an assessment of the damage or compensation cannot occur; and
   8. the works are permanent (which is no longer relied upon by Parklea).
2. The particulars of these matters are set out in the various submissions of Parklea that have been summarised above, and I will not repeat those particulars here.

1. The joint statement provided a detailed account of the interactions between Parklea and Lecky. Parklea says that Lecky did not try to reach an agreement within one month of giving notice. For convenience, I set out s 234(2) of the Act now:

Access by agreement

(1) ...

(2) Once notice has been given, the owner giving notice must try to arrange that access by agreement with the other owner.

1. Parklea states 'Lecky did not, at any time after the giving of notice to Parklea on 13 September 2022, try to arrange access by agreement with Parklea. Rather, it sought to impose that burden on Parklea'.[29]
2. Further it is contended that the attempt to try to arrange access must be 'genuine'. The following summary is Parklea's submission supporting its view that Lecky's attempt to try and reach agreement was not genuine:
   1. negotiations had occurred between Lecky and Parklea regarding a licence arrangement over the land for the ultimate DSS drainage works which included a licence fee of $500,000. Parklea alleges the licence fee was accepted;
   2. Lecky had been seeking legal advice and communicating with MW since June 2022 noting that coincides with the time that negotiations ceased with Parklea being May 2022;
   3. the notice places the burden under s 234(2) of the Act from Lecky to Parklea as it states 'Please contact Paul O'Brien...within one month of this notice to arrange access by agreement"';
   4. Lecky sent a template document comprising a proposed licence agreement without completing the licence fee. Parklea provided its response stating that the licence fee should be $500,000 which Lecky responded to by offering $30,000. Again on 12 October 2022, Parklea set out its position including the basis for the calculation of its contended licence fee. On 17 October 2022, Parklea offered a reduced licence fee of $400,000, an offer which was open for acceptance for seven days. Lecky did not respond to Parklea's offer; and
   5. on 20 October 2022, Lecky made its application to the Minister under s 235(1) of the Act.

1. Lecky says quite simply that lawful notice was given to Parklea. Further, it agrees that s 235 of the Act involves reference to a fact that is, the giving of notice. Lecky says the real question is whether the reference to the giving of notice is: one of fact; one of law; or one of jurisdictional fact.
2. The determination of that question turns on the construction of s 235 of the Act. Lecky relies on the decision of the HCA in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft[30] (Moorcroft) that considers the distinction between a 'thing in fact' and a 'thing in law'. Moorcroft involved a non-citizen being removed from Australia. I set out the relevant facts in Moorcroft as partly summarised in Lecky's submissions:[31]
   • while living in Australia Moorcroft committed criminal offences and was sentenced to a term of imprisonment but did not serve any prison time;
   • on 24 December 2017, Moorcroft left Australia for New Zealand;
   • on 2 January 2018, Moorcroft entered Australia on a special category visa;
   • on 3 January 2018, the special category visa was cancelled, and Moorcroft was held in immigration detention until she was to depart Australia;
   • on 28 June 2018 the Federal Circuit Court of Australia ('FCCA') made an order quashing the decision to cancel the special category visa by consent of the parties;
   • on 29 January 2019, Moorcroft returned to Australia and applied for a new special category visa which was refused;
   • Moorcroft appealed to the FCCA and the matter was ultimately determined by the HCA following the necessary appeals.
3. At paragraph 20 the HCA quoting a decision of Gageler J in New South Wales v Kable[32] said:

[A] thing done in the purported but invalid exercise of a power conferred by law ... remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a 'nullity' in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid.

1. Lecky contends that the terms of ss 234 and 235 of the Act lead to a view that the giving of notice is a reference to the 'giving of notice in fact' rather than the 'giving of notice in law'. This is for the following reasons:
   1. the language of s 235 of the Act makes no reference to 'valid' notice;
   2. there is no express criteria for the notice or the giving of notice, it does not even need to be in writing;
   3. the notice is given from one person to another person and as such ordinary persons cannot be expected to consider the validity of the notice they are giving or receiving;
   4. the Minister must make an appointment on being satisfied that notice was given and that one month had passed since the giving of that notice;
   5. the process in ss 234 and 235 of the Act allow for prompt resolution of the issue in dispute being the right of access. This supports a construction that does not require the Minister to engage in a process of the validity or lawfulness of the notice; and
   6. the issues raised by Parklea are really about the merits of the right of access and will be determined at a later stage including concerns about the nature and extent of works or their certainty.
2. Lecky disagrees that the notice was not for 'drainage purposes' because that term does not mean naturally occurring broadacre flows.
3. Firstly, Lecky says the narrow construction of 'drainage purposes' should be rejected because the ordinary meaning[33] of drainage in the Macquarie dictionary is:[34]

noun 1. the act or process of draining.

2. a system of drains, artificial or natural.

3. drainage basin.

4. that which is drained off.

1. Thus, a 'drainage purpose' includes any purpose relating to the operation or establishment of a system of drains including the construction of assets for the treatment and storage of water. In modern times, it is contended that the treatment and storage of water is integral to any drainage system. That is to support a system that does not allow untreated water to enter waterways.
2. Secondly, the legislative history supports a broader construction of drainage because the DOLA defined the purpose for which a person might seek drainage rights that is, to 'drain the land' to allow new drains or improvement of existing drains. The Act does not define 'drainage' or the manner in which drainage may be achieved. That distinction is a deliberate choice made by Parliament.
3. With respect to Parklea's position that drainage is to occur 'over' land and not 'onto' land, Lecky says this is a misunderstanding of the phrases 'drainage purpose' and 'over land' in s 234 of the Act.
4. Lecky repeats its submissions regarding a broader construction of drainage purposes set out immediately above and says the phrase 'over land' is to be understood by reference its relationship with the 'right of access' to be created. Properly understood the phrase 'over land' describes a situation where rights fall short of an estate or interest in a legal or equitable sense. Lecky refers to a decision of the HCA in Commonwealth v Maddalozzo[35] where the HCA held that a mining lease was a right over land and thus, an interest for the relevant legislation.
5. Further, Lecky says that s 235(3) of the Act supports its view of the phrase 'over land' because the authority is asked to consider 'whether a right of access should be created over land' and is not asked whether a 'right of access over land should be created'. Thus, its proper construction is that the section contemplates the creation of a right over land and the nature of the right to be created is a right of access within the meaning in s 235 of the Act. That right then extends to works as contemplated by s 235(3)(b) of the Act. Lecky notes that the Act does not use the language in the historical legislation of 'through land' and has chosen 'over land' because the drainage purposes are not confined to the construction of drains through land.
6. Lecky disagrees with Parklea's interpretation that there must be an existing need for the drainage purpose because the language of s 234 of the Act does not require notice when a right of access is required or needed. There is nothing in the language of the provision that supports a construction that imports a requirement for need or urgency. Given the absence of any language suggesting a requirement for need or urgency, VCAT should not interpolate such a requirement.
7. Lecky highlights the language of s 36 of the SD Act which can be contrasted as that process provides a person to seek leave to acquire an easement if it is 'require[d] for the economic ...' indicating a need that exists.
8. Lecky does accept that the issue of need is not irrelevant to the question of whether a right of access should be created over land. However, that is a question for consideration by SRW at a later stage.
9. Further, Lecky says there is no requirement that the works to be constructed must be 'necessary' for the right of access nor that the determination of such necessity impact on the lawfulness of the notice. The only reference to 'works' is in s 235(4) of the Act where if a right of access is granted by an authority the nature and extent of works will also need to be decided upon by that authority. Lecky says the reference to 'necessary' occurs in ss 238 and 239 of the Act and should be understood to confer ancillary rights including rights for maintenance of the works necessary for the use of the right of access.
10. Lecky also says that the notice is not required to include details of the works for which permission is sought. The ultimate resolution of the works for the use of the right of access is determined as part of the merits assessment. To that end, Lecky also says that the nature, extent and certainty of the works do not have anything to do with the giving of the notice or appointment of the authority by the Minister because neither s 234 nor 235 of the Act contain such a requirement. The nature, extent and certainty of the works are matters relevant to the ultimate merits in the consideration of whether a right of access should be created over land.

1. The Minister also takes issue with Parklea's submissions that the notice was unlawful.
2. The Minister highlights s 234(1) of the Act and says that this provision does not explicitly prescribe requirements for the form or content of any notice given under that section. However, the Minister says the text of s 234(1) of the Act may, by implication provide requirements for a valid notice. Those are:
   1. the identity of the land owner seeking the access:
   2. the identity of the land over which access is sought;
   3. the identity of the person to whom notice is given;
   4. the land owner is seeking the access;
   5. the purpose for which the right of access is sought.
3. It is said that s 234(1) of the Act permits flexibility in how the notice may be given and what information the notice may contain.
4. The Minister criticises Parklea's narrow interpretation of drainage purposes because it misstates the grammatical syntax of s 234(1) of the Act which is concerned with an owner of land seeking access over land for drainage purposes. Parklea's construction would be 'an owner of land who seeks access for drainage over land' which is simply not stated in s 234(1) of the Act.
5. In response to the purpose of the right of access being to fulfill the needs of MW and not that of Lecky, the Minister simply says that Lecky is seeking access for its own drainage purposes. The fact that Lecky and MW may share the same purpose does not stop Lecky from pursuing its own drainage purpose.
6. In response to the present need for drainage and the extent, nature and certainty of the works, the Minister says that issue is for the consideration of the merits of the right of access and cannot bear upon the validity of the notice, which is an anterior step to the decision of SRW.

1. Lecky says that s 235 of the Act does not contain any obligation for the Minister to consider the adequacy of negotiations between land owners. Further, VCAT should not read any such obligation into that provision of the Act.
2. Parliament was aware of s 234(2) of the Act that the land owner seeking access after giving notice must try to arrange that access by agreement when it was considering s 235 of the Act. Parliament chose not to include any criteria relating to the quality or adequacy of such negotiations. Moreover, the adequacy or otherwise of the negotiations may be a consideration for the authority in considering whether to grant a right of access over Parklea's land.
3. The imposition of an obligation to consider the adequacy of negotiations is inconsistent with a process that is intended to be fast, simple and merits based. This is supported by s 234(1) of the Act that does not specify:
   • any particular form of notice;
   • the contents of such notice; and
   • the manner in which such notice is to be given.
4. The only criterion in s 235 of the Act is that one month has elapsed from the giving of the notice. This is a simple criterion, and the time frame is relatively short.
5. Further, s 235(2) of the Act then imposes a duty on the Minister to appoint an authority without discretion. Again, this is a simple and clear criterion.
6. However, Lecky accepts that a broad discretion is conferred on the authority when it is considering the issue. It is also said by Lecky that the use of the word 'try' does not specify any particular level of effort or any benchmark criteria that can be referenced.
7. Lecky says the above process indicated a simple, fast and efficient process avoiding endless and fruitless negotiations.

1. The Minister does not make any submissions on the issue of whether Lecky genuinely tried to arrange a right of access to Parklea's land. The Minister says the issue is irrelevant and does not need to be determined by VCAT because the language of s 234(2) of the Act does not evince an intention that a failure to try to arrange access invalidates a decision to appoint an authority. The Minister relies upon the following statement of the HCA in Project Blue Sky Inc v Australian Broadcasting Authority[36] (Project Blue Sky)

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition ...

1. The Minister highlights that there is only one jurisdictional fact in s 235(2) of the Act to enliven her jurisdiction to appoint an authority that is, if an application is made to her. There is no requirement for the Minister to appoint an authority after the owner tries to arrange access by agreement. Rather, the Minister says the act or event that enlivens her jurisdiction is that 'agreement has not been reached with the other owner about access within one month after service of the notice on the other owner'.
2. In terms of s 234(2) of the Act the Minister submits that in using the word 'try' the legislature clearly intended this to be a facilitative and flexible obligation. The language of s 234(2) of the Act which lacks precision, uses indeterminate language and does not have any rule-like quality. This favours a conclusion that a failure to try to reach agreement about access does not invalidate an application made under s 235(2) of the Act.

1. Parklea says that two statutory preconditions were not satisfied and thus, the appointment of SRW by the Minister is beyond power. Parklea alleges that lawful notice was not given, and that Lecky did not genuinely try to reach agreement. I deal with each of these below.

1. I disagree with Parklea's submissions about lawful notice for the following reasons.
2. Section 234(1) of the Act provides the requirements for notice and by implication these requirements may constitute a 'valid' notice. The requirements are:
   • the identity of the owner seeking access over land owned by another person;
   • the purpose for which the owner seeks access;
   • the identity of the land over which access is sought owned by another person; and
   • the identity of the owner (and occupier, if relevant) of the land over which access is sought (that is, to whom notice is given).
3. Section 233 of the Act defines owner to include: a person who acts with the consent of the owner and a person who holds the land as executor or administrator or trustee. Thus, if an occupier of land who did not have the consent of the owner (as registered proprietor) gave notice under s 234(1) of the Act arguably that would not constitute 'notice' because the statutory requirement was not met.
4. With the exception of the second requirement set out above, the remaining three requirements are factual and can be readily established. Thus, I find that three of the four requirements are factual matters that are readily and easily established.
5. Whilst on its face the second requirement may involve a degree of interpretation and arguably is a question of mixed fact and law, the fact there is no requirement in the Act or any relevant regulation that prescribes the form of such notice, supports a view that the purpose for which access is sought is to be taken as a 'given' by the Minister. What is required by s 234(1) of the Act is an identification of the purpose rather than a forensic interpretation about the nature of works and whether they fall within the category of purposes. Any interpretation of the purpose of the works, or the nature of the work or their necessity is a matter for debate in any downstream decision made by the appointed body. The notice must state a purpose that is set out in s 235(1) of the Act and nothing more.
6. Thus, based on the above the four requirements of s 234(1) of the Act have been met and to that extent 'lawful' notice was given.
7. I have already found that reference to 'drainage purpose' does not mean to drain naturally occurring broadacre flows and thus, this argument in so far as it supports the first ground of invalidity is rejected.
8. Parklea relies upon the least interference principle that is, that where ambiguity arises in the interpretation of s 235 of the Act, I should adopt a narrow construction. I agree that is what is required if ambiguity exists in the interpretation of s 235 of the Act. However, once the interpretation exercise has been undertaken, as I have done above, there is no ambiguity in the interpretation of that section of the Act or in the interpretation of Part 12 of the Act and thus, that principle does not apply.

1. I disagree with Parklea's contention that access 'over' land only creates a right of entry onto the land and nothing more. I start by examining the ordinary meaning of access as contained in the Macquarie Dictionary. 'Access' is defined as:[37]

noun 1. way, means, or opportunity of approach or entry:

2. (sometimes followed by to) the act or privilege of coming; admittance; approach:

1. The ordinary meaning of 'access' includes 'way' or 'means' that essentially means some manner or means for attaining an end.
2. I do not accept that 'access' means 'right of entry' as submitted by Parklea because it fails to properly have regard to the text of the provisions and their context.
3. Section 235 of the Act does not contain the phrase 'access of land' within it. Rather that is the heading of Part 12 of the Act. I set out each time 'access' is used in ss 234 and 235 of the Act:

(1) An owner of land who seeks access for drainage, water supply or salinity mitigation purposes over land owned by another person may give notice to - > > > (a) the other owner; and > > > > (b) to the occupier of the land over which access is sought, if the owner is not the occupier. > > (2) Once notice has been given, the owner giving notice must try to arrange that access by agreement with the other owner. > > (3) An agreement must -

(a) specify any compensation agreed to; and

(b) clearly describe the access agreed to; and

(c) be accompanied by a map of the land which shows the location and measurements of the proposed works.

(4) An agreement made between the owner of one or more parcels of land and another owner must specify each parcel of land over, or in favour of, which the right of access is created.

(5) An owner of more than one parcel of land who wishes to create a right of access over one parcel in favour of another parcel may declare in writing in the form approved by the Minister that such right of access has been created.

235 Access without agreement

(1) An owner of land who seeks access for drainage, water supply or salinity mitigation purposes over land owned by another person and who gives notice under section 234(1) may, if agreement has not been reached with the other owner about access within one month after service of the notice on the other owner, apply to the Minister for the appointment of an Authority to decide the issue.

(2) ...

(3) In deciding whether a right of access should be created over land, the appointed body must have regard to the following -

(a) whether any damage will be caused to the property of the owner of the land;

(b) whether that owner may be fully compensated for that damage by money or otherwise.

(4) If the appointed body decides that a right of access should be created over land, that body must decide the nature and extent of that right and of the works that may be constructed on that land.

(5) ...

(VCAT emphasis)

1. Access is used in ss 234 and 235 of the Act to mean a method or means for a particular purpose, in this case drainage. The method or means for the particular purpose must occur over land. It is not as limited as contended by Parklea.
2. Further, s 234(3)(c) of the Act also supports a wider interpretation of access over land than contended by Parklea because it requires any agreement to be accompanied by a map of the land which shows the location and measurements of the proposed works. If access over land is confined to the right of entry, s 234(3)(c) of the Act would not be necessary as part of any agreement about access.
3. Lastly, the word 'works' is defined in s 3 of the Act as:

"works" includes -

(a) reservoirs, dams, bores, channels, sewers, drains, pipes, conduits, fire plugs, machinery, equipment and apparatus, whether on, above or under land; and

(b) works described in section 10, whether on, above or under land; and

(c) fencing;

1. This definition also supports that 'right of access' is broader than a 'right of entry' because of the nature of the works contained in the definition.
2. Having regard to the above analysis, I find that 'access over land' means a way or method over land for a particular purpose.

1. I do not accept Parklea's submission that the works must be:
   • necessary and by that it means 'essential' to drain Lecky's land; and
   • final and certain to allow SRW to assess the application.
2. I agree with the submissions of Lecky that there is no text or context in s 235(4) of the Act that leads to a conclusion that the works must be necessary or essential for lawful notice to be given. The only time the word necessary appears in Part 12 of the Act is in ss 238 and 239. These provisions deal with maintenance of works and ancillary rights. The use of the word 'necessary' relates to those maintenance works that are necessary for the use of the right of access and any work necessary to construct, maintain and alter works in the land over which the right of access is created. These provisions do not deal with the works at first instance that are necessary for the creation of the access over land for drainage purposes.
3. In any event, whether the proposed works are necessary, essential, final and certain are matters for the merits decision and are not matters that pertain to whether a notice is 'lawful'.

1. I disagree with Parklea that the purpose of the access over its land is for MW. Rather, Lecky is seeking access for its own drainage purposes in relation to the development of the Lecky Land. The fact that Lecky's drainage purpose may be the same as any ultimate drainage solution sought by MW in the PSP area does not derogate from the access over Parklea's land being for Lecky's drainage purpose.

Owner giving notice must 'try' to arrange that access by agreement

1. The word 'try' is not defined and thus, I must have regard to its ordinary meaning which is:[38]

verb (t) 1. to attempt to do or accomplish: ...

2. ...

3. to endeavour to ascertain by experiment: ...

4. ...

-verb (i) 11. to make an attempt or effort: try harder next time.

1. Nothing in the ordinary meaning of 'try' supports Parklea's contention that there must be a 'genuine attempt' to reach agreement. The ordinary meaning of 'try' simply means attempt to; to endeavour; or to make an effort. The authenticity of that attempt, endeavour or effort is not the subject of scrutiny under the Act. There are no criteria set out in s 234 of the Act that provide for an assessment of the authenticity of the attempt, endeavour or effort made to arrange for access by agreement.
2. In any event, it is difficult to understand how it can be said that the failure of an owner to try to arrange access by agreement invalidates the decision of the Minister to appoint SRW or that lawful notice was not given.
3. The Minister must make an appointment under s 235(2) of the Act if an application is made to her under s 235(1) of the Act and, one month has passed since the service of the Notice. That appointment is not predicated on the Minister being told about any attempt by the owner under s 234(2) of the Act. Thus, any failure to comply with s 234(2) of the Act cannot invalidate the decision of the Minister to appoint SRW. It is not a statutory precondition to the exercise of the Minister's power to appoint an authority.
4. The purpose of s 234(2) of the Act is to provide an opportunity for the relevant owners to reach agreement in the period between the giving of notice under s 235(1) of the Act and the appointment of an Authority under s 235(2) of the Act to avoid the process involved if access is not agreed.
5. And, in any event, I do not agree with Parklea that Lecky did try to arrange access by agreement. The joint statement provides a detailed summary of the exchange of correspondence that occurred between Parklea and Lecky from 12 September 2022 and 15 December 2022. I now extract that part of the joint statement which helpfully also cross references the relevant attachment:

1. I highlight the following in terms of the correspondence during the relevant period. When Lecky[39] sent Parklea the Notice under s 234 of the Act it stated (inter alia):

CONTACT: Please contact Paul O'Brien ... within one month of this notice to arrange access by agreement.

1. On 19 September 2022, Parklea[40] responded to Lecky highlighting the Notice only provided details for contacting Lecky and then stated ' ... does your client have an actual offer to negotiate access by agreement, to put ...'.
2. On 3 October 2022, Lecky sent an email to Parklea as follows:

By way of update, my client is going to provide me with some more detailed plans of the proposed works, which I plan to provide to you for the purposes of discussion to assist in coming to an agreement.

Does your client have any specific questions about the notice and the proposed works?

We understand that the subject land is to vest in the Council. Can you please provide details of your client's obligation to do this and when it is expected that this will occur.

1. A response was sent by Parklea on 5 October 2022 that provided:

We await further details on the proposed works as you have flagged below, however please note that it is our understanding that the s234 notice is to seek to resolve access and, as such, our client has not yet turned its mind to works as there is no proposed arrangements for access to enable the works.

An access agreement is required, which addresses entry onto the land to undertake agreed works as well as other access arrangements. We note that an access (licence) agreement was previously provided by Parklea to your client on this matter. At this stage, terms required by Parklea for an access agreement include:

- Expenses incurred by Parklea in reviewing the proposed works and in negotiating the access agreement are to be reimbursed by your client

- Arrangements for vesting of the land in the relevant authority (and maintenance of the works up til vesting)

1. Later on, the same day Lecky responded to Parklea in the following terms:

Our client proposes sending you a draft agreement together with the more detailed plans of the proposed works. I hope to provide them to you shortly.

It is not clear what you mean by arrangements for vesting of the land. We understand that your client is required to vest the land in the Council. Please provide more details about this obligation and timing . We had understood that the vesting is likely to occur after the works are carried out, but if this is not the case please let us know. The agreement with your client will need to continue until the date of such vesting.

Parklea's position on arrangements for vesting are known to your client, as per the licence agreement previously sent to them in May 2022 ...

1. On 6 October 2022, Lecky sent Parklea further details of the proposed works and a draft agreement, 'in order to progress .. to reach an agreement about access...'. The phrase 'Licence Fee' was not defined in the draft agreement.
2. Parklea was dissatisfied with the length of time Lecky had taken to prepare a draft agreement for access and on 7 October 2022 sent its version of an agreement. This was similar to a version of the agreement that Parklea had sent to Lecky prior to the Notice being sent.
3. Importantly, on 10 October 2022, Lecky responded to Parklea in the following terms:

Noting that your client will not progress an agreement without an agreement on the licence fee, we are instructed that our client does not accept a licence fee of $ ....... plus gst. It considers the amount excessive, particularly as the land is to vest in Melbourne Water, the works to be undertaken by our client are required by a third party authority (Melbourne Water) and the use of the land is irrelevant to your client. Also the works program has a very short timeframe and the works involve negligible risk to your client given the terms of our proposed agreement. Our client does not understand how such an amount can be justified. Our client considers a licence fee of $ ...... to be appropriate in the circumstances and is prepared to offer this until 17 October 2022.

1. I do not recite the entirety of the correspondence between Parklea and Lecky as I am satisfied the above summary demonstrates that Lecky complied with s 234(2) of the Act because it attempted, endeavoured and made an effort in arranging access by agreement. The authenticity of that attempt, endeavour or effort is not the subject of scrutiny under the Act in so far as the Minister's power under s 235(2) of the Act is concerned.
2. Having regard to my reasons set out above, ground 1 fails.

1. Parklea says the process under s 235 of the Act was not available to the Minister because:
   1. of the Anthony Hordern principle;
   2. the statutory preconditions were not satisfied; and
   3. the issue to be determined by SRW is beyond the scope of s 235 of the Act.
2. The supporting submissions for these matters above have been set out in detail earlier in this decision and so, I will not repeat those submissions here.

1. Again, the responses have been set out earlier in these reasons, and I will not repeat them here.

1. Parklea's submission with respect to the Anthony Hordern principle depends on the proposition that s 36 of the SD Act and ss 234 and 235 of the Act deal with the same subject matter, namely the creation of an easement or a right akin to a private easement. The issue with this submission is that it only looks at the consequence of the various processes. In Nyastrom the HCA described the inquiry to be whether the subject matter of the power is in law substantially the same [41] and further that the principle applied when it was possible to conclude that the statute confers a single power to perform the relevant action.[42]
2. I do not agree with Parklea that s 36 of the SD Act creates rights that are analogous to s 235 of the Act. Notably, s 36 of the SD Act provides the legislative basis for the creation or removal of an easement on land owned by another when certain preconditions are met and with leave of VCAT. The heading to s 36 of the SD Act is 'Power of owner to acquire or remove easements'. The preconditions for the leave of VCAT are:
   1. there must be consideration of an amendment to a planning scheme, or an application for permit or amendment to a permit;
   2. there must be a statement in writing from a council or referral authority that it considers the economical and efficient subdivision, consolidation, servicing of, or access to land requires the owner of land to acquire or remove an easement over another's land or remove a right of way over another's land; and
   3. there must be consideration that the creation or removal will not result in an unreasonable loss of amenity.
3. If VCAT grants leave for the acquisition of an easement, the owner of the land may compulsorily acquire the easement, and compensation may be paid under the Land Acquisition and Compensation Act 1986 (Vic).
4. I note that s 36 of the SD Act:
   1. does not give approval for any works within the easement that is ultimately constructed;
   2. does not permit maintenance of any such works; and
   3. requires leave of VCAT even if an agreement is reached between the two relevant landowners.
5. Section 36 of the SD Act is primarily focused on whether the landowner 'requires' the acquisition of the easement in the sense that it is necessary or indispensable and not simply desirable or convenient. To that extent it is limited by the statutory preconditions and the consideration of whether the easement is required or necessary. However, the circumstances which give rise to the statement of a council or referral authority are broad and include subdivision, consolidation, servicing or access.
6. By contrast, s 235 of the Act is headed 'Access without agreement', there is no mention of 'easement' in that provision. I note that ss 136 and 287Q of the Act refer to subdivisional easements and reserves and easements respectively. That differentiation evinces a deliberate intention by the legislature. Further, the circumstances that allow a notice under s 235 of the Act to be given are limited to drainage, water supply or salinity mitigation purposes and are arguably more limited than those under s 36 of the SD Act.
7. Section 235 of the Act also requires consideration of any damage, whether the owner can be fully compensated and further must decide the nature and extent of the works. Again, arguably the power under s 235 of the Act is more limited than the power to grant leave under s 36 of the SD Act.
8. Having regard to the above, I find the subject matter of the power in s 36 of the SD Act and s 235 of the Act is not in law substantially the same and there is no statutory intention to confer a single power to perform the relevant action.

1. For completeness I extract ss 130 and 136 of the Act:

(1) An Authority may purchase or compulsorily acquire any land which is or may be required by the Authority for or in connection with, or as incidental to, the performance of its functions or the achievement of its objects. > > (2) The Land Acquisition and Compensation Act 1986 applies to this Act and for that purpose - > > > (a) the Water Act 1989 is the special Act; and > > > > (b) the acquiring Authority is the Authority; and > > > > (c) land includes - > > > > > (i) any land that - > > (A) is actually comprised by measurement in the land described in the Crown grant of the land; and > > (B) forms part of the bed and banks of a watercourse; and > > (C) is declared to remain the property of the Crown by section 385 of the Land Act 1958; and

(ii) strata above or below the surface of land and easements and rights to use land or strata above or below the surface of land.

(3) If an Authority acquires any right in the nature of an easement or purporting to be an easement, that right must be taken to be an easement even though there is no land vested in the Authority which is benefited or capable of being benefited by that right.

...

(1) If a proposal for subdivision of land is referred to an Authority under the Planning and Environment Act 1987 , the Authority may require the creation of easements or reserves, or both, for the use of the Authority for any of the following purposes -

(a) pipelines or ancillary purposes;

(b) channels;

(c) carriageways;

(d) waterway management;

(e) drainage.

(2) The creation of an easement or a reserve for a purpose specified in subsection (1) gives the Authority for whose use it is created the rights prescribed in relation to an easement or reserve created for that purpose.

1. I agree with Lecky's submissions with respect to ss 130 and 136 of the Act that the processes are only available to an authority.
2. Section 130 of the Act is not limited to the acquisition of an easement but includes acquisition of freehold land and further, acquisition occurs when the authority requires the land for or in connection with, incidental to, the performance of the authority's function and achievement of its objectives. Section 130 of the Act is quite broad when compared to s 235 of the Act.
3. The authority's ability to acquire an easement or reserve is permitted for certain purposes. Those purposes are arguably broader than the purposes in s 235 of the Act and can only be pursued by an authority if there is a proposal for subdivision of land.
4. Having regard to the above, the subject matter of the power in ss 130 and 136 of the Act is not in law substantially the same as the power under s 235 of the Act and there is no statutory intention to confer a single power to perform the relevant action.

1. Given my findings under Ground 1, I do not need to consider this matter further.

1. There is no dispute before me that the 'issue' in s 235(1) of the Act is whether a right of access should be created over land for a relevant purpose. Parklea says that at a superficial level the process set out in s 235 of the Act is 'straightforward'. But then says that various difficulties arise for example:
   • what does right of access mean and does it include the right to send drainage onto or over another person's land?
   • does drainage purpose include the right to treat or store water?
   • does the drainage purpose need to exist or can it be a future need?
   • can works be authorised by SRW if they are desirable but not essential and must they be desirable or essential to facilitate the drainage purpose?
2. Some of these matters have been addressed by me in this proceeding, the others are matters for SRW when it considers whether a right of access should be created. The legislature has entrusted the relevant 'authority' because it holds the requisite expertise to make decisions regarding:
   • any damage to the property of the owner of the land;
   • compensation for damage by money or otherwise; and
   • the nature and extent of the right of access including works that may be constructed on that land.
3. Further, there is a right of review to VCAT if a person's interests are affected by the decision of the authority.
4. Parklea also opines that the SRW appointment was not constrained to the issue because the SRW appointment states:

Water Act 1989

Appointment of an Authority under Section 235(2) of the Water Act 1989

1. Under section 235(1) of the Water Act 1989 (the Act), ... on behalf of 100 Lecky Road Pty. Ltd. (also known as Growland Group Pty Ltd.) has applied to the Minister for Water for the appointment of an Authority to decide on an issue of access.
2. 100 Lecky Road Pty Ltd seeks right of access to provide for stormwater outfall from its development over land owned by Parklea Pty Ltd described in the Register as Volume 12024 Folio 433 being Lot Q, on plan of subdivision 721481K, Officer, Victoria.
3. Notice has been served under Section 234 of the Act constituted by a letter from 100 Lecky Road Pty Ltd, dated 12 September 2022 and agreement has not been reached. The right of access sought affects part of the land in Volume 12024 Folio 433 and is described in the notice served under section 234.
4. I, ... Secretary of the Department of Energy, Environment and Climate Action, as delegate of the Minister for Water, pursuant to section 235(2) of the Act appoint Southern Rural Water Corporation to decide the issue of access over land which is subject to the notice referred to in paragraph 2 above.
5. I disagree with Parklea's contention that SRW's appointment was not constrained. Indeed, a proper reading of the appointment leads to a conclusion that SRW's appointment is constrained:
   • to decide the issue of access; and
   • that access is to provide for stormwater outfall.
6. Having regard to my reasons above, ground 2 must fail.

GROUND 3 - FAILURE TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS

1. At the hearing Parklea advised that it no longer 'pressed' this ground as it has been dealt with in ground 2.
2. Accordingly, I do not consider this ground any further.

SUBMISSIONS: GROUND 4 - BREACH OF PROCEDURAL FAIRNESS

1. Put simply Parklea says that it was denied procedural fairness because:
   1. it was not informed that an application had been made to the Minister;
   2. that the Minister had dialogue with MW and Lecky;
   3. it was denied the opportunity to be heard about the notice and whether it could be issued;
   4. it could not respond to an allegation that 'access issues are often a tactic employed where one developer seeks a commercial advantage'; and
   5. the decision to appoint SRW creates a risk of the loss of its property by the right to access of its land.
2. Parklea submits that the process set out in ss 234 and 235 of the Act does not expressly exclude any right to procedural fairness and that the decision to appoint SRW directly affects its interests.
3. Parklea relies on the decision of the SCV in Certain Children v Minister for Families and Children & Ors[43] (Certain Children) in respect of the requirement to afford procedural fairness. The SCV stated:[44]

The principles applicable to the obligation to provide procedural fairness were recently stated by a unanimous High Court in Minister for Immigration and Border Protection v SZSSJ. It is settled that procedural fairness is implied as a condition of the exercise of a statutory power through the application of the common law principles of statutory interpretation. A statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to do so on condition that the power is exercised in a manner that affords procedural fairness to that individual, unless the presumption is excluded by very clear words in the statute. If the exercise of statutory power is conditioned on observance of the rules of procedural fairness it follows that a failure to comply with the rules will render a decision made, in purported exercise of the power, invalid. When it is asserted that the rules of procedural fairness do not condition the exercise of a statutory power, the question is whether the legislation, on its proper construction, displays a legislative intention to exclude the rules. Such an intention may be found, for example, where compliance with the rules in respect of the exercise of a statutory power will 'necessarily frustrate or be inconsistent with the exercise of the power'.

(footnotes omitted)

1. Parklea contends that whilst the decision to appoint SRW may be a preliminary decision that does not immediately or directly affect its interests, such preliminary decisions are not excluded from the rules of procedural fairness. In Gribbles Pathology (Vic) Pty Ltd v Cassidy[45] (Gribbles)

It is common for statutes to impose procedural requirements which might otherwise be imposed by the rules of natural justice. Many statutes require the giving of notice, or the invitation of submissions, before a particular decision is made. It is also common for decision-making processes to consist of several stages or several intermediate decisions leading to a final decision. At one time it was thought that preliminary decisions, which could not in themselves affect rights without some further action or decision being taken, would not attract a duty to observe natural justice. That approach has now been rejected since such decisions will often affect important interests, including reputation, or legitimate expectations: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 576-578.

1. I also extract the following from Gribbles:[46]

It is well established that the seriousness of a decision for an affected individual is one of the main considerations determining the application of procedural fairness. Generally speaking, the requirements of procedural fairness will be heightened in proportion to the gravity of the consequences involved. It is sometimes said that reasonable prior notice constitutes the "minium content of natural justice ...

1. Parklea says that its property interests are directly affected by the decision of the Minister to appoint SRW and relying on Disorganised Developments Pty Ltd v South Australia[47] (Disorganised Developments) highlights the following from the HCA:

One must start with the proposition that there is a strong common law presumption that the exercise of a statutory power which is apt directly to affect an individual is subject to an obligation to provide procedural fairness. However, it is equally well established that Parliament may exclude such an obligation, whether expressly or by necessary implication...[48]

Decisions made in the exercise of statutory powers that affect the rights of individuals with respect to property are a category of cases that has a long history of attracting a duty of procedural fairness as a matter of "fundamental justice", "long-established doctrine" and a deep-rooted principle of the law", subject to displacement by Parliament through express words or necessary implication in the relevant statute...[49]

Notwithstanding the breadth of the stated presumption, there remain statutory powers that are not conditioned upon a duty to give procedural fairness. In particular, powers that affect individuals in an undifferentiated way from the general public may not attract an obligation of procedural fairness. Thus, in Kioa v West, members of this Court emphasised the need for people to be affected as individuals for procedural fairness to apply where a decision affects many people. Mason J adopted a distinction between a decision which directly affects the person individually and one which simply affects her or him as a member of the public or of a class of the public. Brennan J considered that (subject to displacement by the text of the statute, the nature of the power and the administrative framework created by the statute) the presumption "applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public". Deane J referred to a direct effect on, relevantly, rights and interests of a person in her or his individual capacity, as distinct from a member of the general public or of a class of the general public.[50]

Procedural fairness under this scheme requires reasonable notice to an owner or occupier of a proposal to declare a place a prescribed place, to give them an opportunity to supply information or make submissions as to matters within their knowledge as an owner or occupier that may be relevant to a decision to exercise the declaration power. It does not require an opportunity to make more general submissions as to the likely efficacy of the exercise of the declaration power in disrupting serious criminal activity. Accordingly, this is not a case where procedural fairness would require owners or occupiers to be informed of the nature or content of information that might form the basis of a recommendation to the Governor to declare a place to be a prescribed place.[51]

1. Parklea contends that the decision of the Minister to appoint SRW directly affects its property rights and involves an exposure or risk of an inquiry which may impair its unfettered legal right to unencumbered enjoyment of its land.

1. Lecky disagrees with Parklea's submissions about procedural fairness and says the giving of notice, the application to the Minister and the appointment of SRW do not involve an exercise of power that affects Parklea's interests in the required manner.
2. Alternatively, Lecky says that if the exercise of power to appoint SRW does attract the rules of procedural fairness, that right to procedural fairness is discharged by the consideration of the merits of the right of access and associated works.
3. In support of its primary submission, Lecky says that in order for the rules of procedural fairness to apply the effect on Parklea's rights must be 'direct and immediate' as set out by the HCA in Kioa v West[52] where Mason J stated:

The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn L.C. understood that this was the law when he spoke of the obligation to "fairly listen to both sides" being "a duty lying upon every one who decides anything": Board of Education v. Rice (98). But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly...

1. Lecky says that nothing in the giving of notice, the making of the application to the Minister or the appointment of SRW has any direct effect on Parklea's interests. Lecky relies upon the decision of the FCA in Ryan v Australian Securities and Investment Commission[53] (Ryan) where it stated:

In my opinion, the initiation of the exercise of a statutory power of an investigatory nature will not normally "destroy, defeat or prejudice" (to use the words from Annetts v McCann 170 CLR 596) or "imperil" (to use Meagher J's word) any relevant right or interest such as to require notice to be given to the object prior to exercise of the power. In any event, where, as here, the exercise of a power is anterior to that which has a direct effect upon the party, there is no such requirement.

1. The decision in Ryan was approved by the FCFCA in Saraceni v Australian Securities and Investment Commission[54] (Saraceni):
   1. The decision of ASIC to authorise a person to apply for a summons for examination has a consequence for the potential examinees. It brings closer the chance of an examination of the potential examinee occurring. In ordinary parlance that consequence is properly described as a prejudice to the potential examinee because it is a disadvantage to that person. Further, it is a prejudice to an interest which the potential examinee has in remaining free of the intrusion which an examination entails, and free from the necessity to expend time and effort required to participate in such an examination. However, prejudice is not a concept with a fixed content. There are degrees of prejudice. Not all statutory powers which prejudice a person's interest attract the obligations of procedural fairness. It is necessary for the Court to make an assessment of the degree to which the exercise of power prejudices the interests of Mr Saraceni.
   2. ...
   3. In Ryan, Gyles J correctly asked the question whether the statutory power in s 596A directly prejudiced the potential examinees. His reasoning sought to resolve that question. Gyles J answered that question by concluding that s 596A did not directly prejudice the interests of the potential examinee.
   4. That conclusion was correct. The reasoning applies equally to the circumstances of the present appeal. The statutory power conferred by s 596A prejudices the interests of potential examinees but does not do so in a sufficiently direct way as to require potential examinees to be heard in relation to the decision of ASIC. As a result, the appeal must be dismissed with costs.
2. Lecky acknowledges the power to appoint an authority under s 235(2) of the Act is different from the power being considered in either Ryan or Saraceni however, it says that the appointment does not directly impact Parklea's rights.
3. In support of its alternate position, Lecky says that any hearing before SRW provides procedural fairness to Parklea and thus, when viewing the process as a whole, the obligation is discharged.
4. Lecky relies upon a number of decisions involving applications for parole or disciplinary complaints which I do not recite here. It is sufficient to note that:
   1. the Act does not require the Minister to form any opinion about the merits of the application before her to appoint an authority. It is a mandatory requirement that an authority be appointed after an application is made to the Minister; and
   2. the automatic appointment of an authority based on the receipt of an application to consider a right of access does not raise any negative implications about the owner of the land over which a right of access is sought.

1. The Minister's submission contains a detailed summary of the principles relevant to procedural fairness. I now extract that summary excluding the footnotes:

56.1 First, procedural fairness is not "an abstract concept". It is "essentially practical" and "the concern of the law is to avoid practical injustice". > > 56.2 Second, where a decision-making process involves different stages before a final decision is made, the requirements of natural justice are satisfied if the process, viewed in its entirety, accords procedural fairness. > > 56.3 Third, the obligation of fairness must be accorded to a person whose legal rights or interests are apt to be affected, in a direct and immediate way, by the decision in question. The principles of natural justice are not triggered merely by the initiation of the exercise of a statutory power that does not directly prejudice the interests of a person. > > 56.4 Fourth, where the principles of natural justice do apply, the content of the obligation is determined by the statutory framework and the particular circumstances of each case. The obligation may be more onerous in the case of an adversarial process as compared to other types of administrative decision-making As observed by Gleeson CJ and Hayne J, "[i]n many cases [of administrative decision-making], it is not contemplated that the applicant will either see, or hear anything from, the decision-maker before the decision is made" > > 56.5 Fifth, generally speaking, procedural fairness requires the disclosure of adverse information that is "credible, relevant and significant". The purpose of the rule is to give a person affected by the exercise of statutory power the opportunity to address any adverse information that is relevant to the decision being made. > > 56.6 However, in the context of administrative decision-making, the duty of disclosure is not absolute. For example, there is no requirement that the decision-maker disclose all information that was before it when it made its decision, or even all information on which it relied_._ > > 56.7 Finally, even if an applicant establishes a breach of procedural fairness, relief will be denied if it is shown that the breach made no difference to the outcome of the decision.

2. Having regard to those principles the Minister contends:
   1. the decision to appoint SRW does not affect Parklea's legal rights or interests in a direct or immediate way. It simply initiates a process that may or may not affect Parklea's interests. But the decision to appoint SRW does not itself destroy, defeat, prejudice or imperil any relevant right or interest;
   2. Parklea's right to be heard is adequately protected by its right to be heard before SRW and thus, the decision making process viewed in its entirety entails procedural fairness; and
   3. even if natural justice is considered necessary the obligation to afford procedural fairness only requires that a person be given information that is adverse to that person's interest. Parklea's complaint is two fold:
      1. firstly it is about the opportunity to comment on certain matters contained in the correspondence between it and Lecky. That opportunity if required would provide information that was not taken into account by the Minister in her decision to appoint SRW; and
      2. secondly, it is about the opportunity to make submissions about whether an authority should be appointed and if so, which authority.

However, Parklea cannot point to any practical injustice even if it was denied procedural fairness.

1. Lastly, the Minister says that even if I accept Parklea's submissions, that I should refuse to exercise discretion to make the declaration because:
   1. a more conventional and satisfactory remedy exists;
   2. declaratory relief ought to have consequences. Parklea complains about anticipated works on its land including the extent and nature of such works. The declaration will have no bearing on Parklea's real concerns; and
   3. if SRW makes a decision that affects Parklea's interests, an application for review can be made under s 235(6) of the Act.

1. At the outset, I highlight the principles relevant to the consideration of procedural fairness. For the purposes of this proceeding these are:
   1. procedural fairness is implied as a condition of the exercise of a statutory power;
   2. if the exercise of power is conditional upon procedural fairness being observed, a failure to comply with the rules will render a decision in the purported exercise of power, invalid;
   3. an intention in the legislation to exclude procedural fairness may be seen if the observance with the rules will necessarily frustrate or be inconsistent with the exercise of that power;
   4. preliminary decisions that do not themselves affect rights without some further action or decision attract the rules of procedural fairness;
   5. the requirements for procedural fairness are heightened in proportion to the gravity of the consequences involved;
   6. decisions made in the exercise of statutory powers that affect property interests generally attract the rules of procedural fairness; and
   7. the rules of procedural fairness do not attach to every decision of an administrative character, the decision must affect rights, interests and expectations of an individual in a direct and immediate way.
2. In my view, the question I must ask is aptly set out in Kioa where the HCA stated:[55]

... The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case...

(VCAT emphasis)

1. Section 235 of the Act provides a detailed and staged process of the consideration of access to another's land in the absence of the owner's consent or without agreement. I agree with Parklea that there is nothing in this provision that explicitly excludes the application of rules of procedural fairness. Section 235(2) of the Act requires the Minister to make an appointment of an authority once an application for an appointment of an authority has been made. The fact the Minister must make that appointment under the Act is important in the analysis of whether the rules of procedural fairness apply.[56] The appointment of the authority is administrative in nature and further it is mandatory. It is not an exercise of discretionary power. The only discretion that exists relates to the identity of the authority to be appointed. The application of the rules of procedural fairness would arguably frustrate and delay that simple statutory process. This supports a finding that the appointment of an authority by the Minister does not attract the rules of procedural fairness.
2. I accept the appointment of SRW to make a decision may affect Parklea's property interests however, the effect of that decision is not immediate nor is it direct. The fact that an authority has been appointed is nothing more than a step in a process which ultimately leads to a decision that may affect Parklea's property rights. I say 'may' because the authority may refuse to create access over land.
3. When I ask myself: what does the duty to act fairly require in this proceeding having regard to s 235 of the Act, the answer is found at ss 235(3), (4), (5) and (6) of the Act. When considering whether a right of access should be created over another's land, those provisions require the appointed authority to consider:
   1. extent of damage to another's property;
   2. what compensation is appropriate; and
   3. the nature and extent of works to be constructed on another's property
4. The duty to act fairly would necessarily include the right to be heard on the matters being considered by the appointed authority because its decision has an immediate and direct effect on the property rights of the owner of the land over which access is to be created. Further, it is a decision that is binding on the parties because of s 235(6) of the Act.
5. Moreover, s 235(6) of the Act provides a right of review of the decision of the appointed authority to VCAT by 'a person whose interests are affected'. The review of a decision imports a notion that all relevant persons were heard or given some opportunity to be heard before the primary decision maker.
6. Lastly, the decision to appoint SRW and the process that led to that appointment does not destroy, defeat, prejudice or imperil Parklea's property rights in any direct or immediate manner. The appointment of SRW initiates a process that itself will provide procedural fairness at the time SRW is considering the creation of the access of Parklea's land.
7. On that basis, I find that Parklea was not denied procedural fairness and ground 4 fails.

1. Given my findings on the grounds of invalidity it is not necessary to consider whether I should exercise any discretion.
2. Having regard to my findings above, the application for declaration under s 305A of the Act is refused.

[2] A hard copy of the notice and associated attachments were also sent by post.

[4] [2021] VSCA 19.

[5] (1997) 187 CLR 384 at [88].

[6] [2015] VSCA 269 at [51].

[7] Geaghan [2002] NSWCA 260; (2002) 36 MVR 542, 544 [22].

[9] Being derived from Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1925] HCA 47; (1932) 37 CLR 1.

[10] Pearce & Geddes, Eighth Edn, (LexisNexis Butterworths Australia).

[11] [2020] FCAFC 108 [38].

[12] [2006] HCA 50; (2006) 228 CLR 566.

[14] Nystrom [59] per Gummow and Hayne JJ.

[16] [2009] HCA 12 [43].

[18] [1944] VicLawRp 1; [1944] VLR 88 pages 1-92.

[19] Page v City of Castlemaine [1988] VicSC 387 page 11.

[20] [2008] VSCA 118.

[21] See s 36 of the Interpretation of Legislation Act 1984 (Vic) ('IL Act').

[26] Provided by Lecky when it filed its submissions dated 21 August 2024.

[27] See Victoria, Parliamentary Debates, Legislative Assembly, 26 May 1989, at 2227 - 2228.

[30] (2021) CLR 21

[33] As this word is not defined in the Act.

[34] Macquarie Dictionary online at 24 February 2025.

[36] [1998] HCA 35; (1998) 194 CLR 355 [91].

[38] Macquarie Dictionary online 17 February 2025.

[43] (No 2) [2017] VSC 251.

[45] [2002] FCA 859 [115].

[47] [2023] HCA 22.

[49] Ibid [28] per Kiefel CJ, Gageler J, Gleeson J and Jagot J.

[52] [1985] HCA 81; (1985) 159 CLR 550 page 584.

[53] [2007] FCA 59; (2007) 158 FCR 301 [67].

[54] [2013] FCAFC 42; (2013) 211 FCR 298 [13 & 15, 16].

[56] Subject to choosing the authority.