1. This application for amendment of permit No 98/7421 (amended) is allowed. The order of the Tribunal is that permit No 98/7421 (amended) be amended pursuant to the Planning and Environment Act 1987, section 87 and section 91 by:

(i) deleting the following words in the preamble to the permit: "modification of easement for carriageway purposes as reserved by instrument of transfer 1866687"; and

(ii) amending the endorsed plan to accord precisely with plan of subdivision No PS425045H (three of three sheets) dated 7 February 2000 and certified by the council on 18 February 2000 and lodged at the Titles Office on 8 May 2000, which plan shows the easement of carriageway reserved under instrument of transfer No 1866687 at a width of 15.29 metres.

2. Surf Coast Shire Council pay Sheila Clare Audas Pitt, John Astley Pitt and Kasempa Pty Ltd party/party costs of these proceedings incurred before 3 December 1999 to be assessed on County Court Scale B to be taxed by the Registrar in default of mutual agreement - such costs to be paid no later than 21 days following taxation by the Registrar.

3. That Kasempa Pty Ltd pay Sheila Clare Audas Pitt, John Astley Pitt and Surf Coast Shire Council party/party costs of these proceedings incurred after 3 December 1999 to be assessed on County Court Scale B to be taxed by the Registrar in default of mutual agreement - such costs to be paid no later than 21 days following taxation by the Registrar.

The Responsible Authority is directed under the provisions of section 91 of the Planning and Environment Act 1987 to amend planning permit No 98/7421 (amended) by:

(i) deleting the following words in the preamble to the permit: "modification of easement for carriageway purposes as reserved by instrument of transfer 1866687"; and

(ii) amending the endorsed plan to accord precisely with plan of subdivision No PS425045H (three of three sheets) dated 7 February 2000 and certified by the council on 18 February 2000 and lodged at the Titles Office on 8 May 2000, which plan shows the easement of carriageway reserved under instrument of transfer No 1866687 at a width of 15.29 metres.

_____________________________ __________________________

For the applicant for amendment of permit: Ms Michele Quigley of Counsel, instructed by Higgins Price, Solicitors.

Ms Quigley called Mr Jamie Lemore Reid, Planning Consultant, and Mrs Sheila Pitt as witnesses.

For the responsible authority: Mr Warwick Nelson, Solicitor of Harwood Andrews.

For the respondent/permitholder: Mr M McKenzie, Solicitor of Doyle and Kerr.

Mr McKenzie called Mr Robert Kelderman, Planning Consultant of Contour Consulting Pty Ltd.

Persons with a material interest: Ms Geraldine O'Connor appeared in person.

Mr Peter Matthews appeared in person on his own behalf and on behalf of Dr Symington and Mr McIldowie.

1. This was an application under section 89(1) of the Planning and Environment Act 1987 to amend a permit No 98/7421 (amended) issued by the Surf Coast Shire Council on 11 August 1998 to "subdivide the land into four lots and modification of easement for carriageway purposes as reserved by instrument of transfer 1866687 in accordance with the endorsed plans" which endorsed plans show a reduction of an easement of carriageway from 15.29 metres down to 3 metres in width in respect of land at 12 Staughton Avenue, Lorne (being Lot 8 on Plan of Subdivision No 11755).

2. At the commencement of the hearing and pursuant to s.127 of the Victorian Civil and Administrative Tribunal Act 1998 Ms Quigley requested the Tribunal to amend her s.87 and s.89 request by substituting the following clauses in place of the words stated on the face of the application:

(a) Section 3 - What land is affected by the permit?

12 Staughton Avenue, Lorne (Lot 8 on Plan of Subdivision 11755);

(b) Section 10 - What are you requesting?

(i) deleting the following words in the preamble to the permit: "modification of easement for carriageway purposes as reserved by instrument of transfer 1866687"; and

(ii) amending the endorsed plan to accord precisely with plan of subdivision No PS425045H (three of three sheets) dated 7 February 2000 and certified by the Council on 18 February 2000 and lodged at the Titles Office on 8 May 2000, which plan shows the easement of carriageway reserved under instrument of transfer No 1866687 at a width of 15.29 metres.

3. There was no objection to these amendments as all parties were well aware of the substance of the hearing and that these amendments accurately reflected what was sought. The reason for the amendments arose from an initial confusion about whether the subject land was affected by the permit or land owned by the easement beneficiaries. Further, the applicant had originally sought cancellation of the permit. However, in a concerted effort to minimise damages to all parties, deal with the contested part of the application and generally assist all parties wherever possible, the three main protagonists in this proceeding consented, on 14 December 1999, to a procedure where the permit was "split into two limbs" with that part of the permission allowing a four lot subdivision to proceed to registration at the Titles Office but deleting any reference to a variation of the original 15.29 metre wide easement down to 3 metres.

4. That consent, recorded in the order by Deputy President Bruce dated 15 December 1999, necessitated an amendment to the s.89 request, as there was no longer a desire to cancel the entire permit.

5. The Tribunal finds the following description of the site and surrounds, taken from the statement of evidence prepared by Robert Kelderman on 15 June 2000, to be an appropriate one:

The property known as No. 12 Staughton Avenue (`Kasempa') is located on the lower, south-western side of Staughton Avenue, above the Lorne township. It is regular in shape, with a frontage of 24.14m, a depth of 82.48m and a total area of 1,991m². The land has a steep slope, particularly towards the front half of the site.

For ease of reference, I will refer to the subject land as fronting the south side of Staughton Avenue throughout the remainder of my report, with the property at No. 10 Staughton Avenue forming the western boundary with the subject land.

As the title indicates, the carriageway easement extends over the rear portion of the subject land and has a width of 15.29m. There is also a 2.01m wide drainage easement along the rear boundary lying wholly within the carriageway easement. The easement are unencumbered by buildings.

At the Directions Hearing on 19 April 2000, in respect of the current proceedings, the parties agreed that 75 neighbouring properties are entitled to use the carriageway easement on the subject land.

Carriageway easements also exist over the neighbouring properties in Staughton Avenue to the west and over the western part of the rear 5.49m portion of the adjoining property to the east (19 Gwynne Avenue). The combined carriageway easement provides access between the southern extension of Lascelles Terrace and Gwynne Avenue over a distance of approximately 125m.

The subject land otherwise accommodates 4 two storey townhouses, which have been developed in accordance with Planning Permit No. 97/7104.

The townhouses have only just been completed and save for one are not yet occupied. The front unit has its own short driveway whilst the other three units are accessed via a common driveway. Each townhouse enjoys coastal views to varying degrees.

There are two abutting properties to the east; one fronting Staughton Avenue (No. 14 - `Murname') and the other fronting Gwynne Avenue (No. 19 `Smith'). Both are occupied by single dwellings. As I have previously mentioned, the property at No. 19 Gwynne Avenue has a 5.49m wide carriageway easement across the western half of its rear boundary, which provides access rights in favour of the subject side and other properties, as I will outline later.

The property to the west (No. 10 Staughton Avenue - `O'Connor') is vacant and I understand that it is the subject of planning permit application for three townhouses. This property is heavily treed. It also has a 15.29m wide carriageway easement along its rear boundary.

The property at No. 17 Gwynne Avenue (`Harris') to the south is occupied by a single storey dwelling and what appears to be a rear bungalow.

The Pitt family properties (ie. Nos 4, 6 and 8 Staughton Avenue) are located further to the west. No. 4 accommodates a single dwelling whilst No. 6 and 8 are vacant. These three properties are also heavily treed. Each of these properties also has a 15.29m wide easement along its rear boundary.

The surrounding area generally accommodates single dwellings, including older style, fibro-cement houses providing permanent accommodation and some holiday houses. There is evidence that these older style houses are gradually being replaced by contemporary dwellings, including multi-units, that are used for both permanent and holiday occupation.

Staughton Avenue is a sealed road from Minapre Street to the subject land and is an unsealed road between the subject land and Waverley Avenue. The southern extension of Lascelles Terrace to the west is a narrow, unsealed road. Waverley Avenue, Gwynne Avenue and Minapre Street are sealed roads.

6. During the hearing, Mr Kelderman commented that the benefit of the easements appears to travel in a west to east direction, meaning that the owners of the property to the west are entitled to use carriageway access along the rear of properties to their east so that the Pitt's have access across the O'Connor, Kasempa and Smith's land, but the reverse is not permissible. The O'Connor's have access across the Kasempa and Smith land and Kasempa's have access over the Smith's land.

7. Properties to the south fronting Waverley Avenue also have carriageway rights over the easement. Other land owners who have easement rights, have access over new roads subsequently created after the carriageway easement reserved by instrument of Transfer No. 1866687.

8. The following description taken from Mr Larmour-Reid's statement of evidence is an appropriate further description of the context of the easement area:

* The area to the west of the subject site is quite distinct in character from the area to the west and south. Much of the land between the site and Lascelles Terrace has been in the ownership of a single family for over half a century and has remained undeveloped apart from a modest single storey house at the south-east corner of Staughton Avenue and Lascelles Terrace.

* To the north-east of the site Staughton Avenue is a sealed road of conventional width with concrete kerbing. The road rises to a ridge immediately to the west of the property. Beyond the ridge the road is unsealed and only of sufficient width to allow two vehicle to pass. The road meanders through a canopy of tall eucalypts.

* The land further west, between Lascelles Terrace and the Erskine River, has been developed but much of the tree canopy has remained intact. The tree canopy, along with the steep topography, form key character components in this area, which includes land immediately to the south-west with frontage to a small cul de sac portion of Waverley Avenue. Housing in this area varies from modest holiday homes nestled amidst the tree canopy to larger, more modern dwellings that either step down the slope or include split levels.

9. The reason that the 15.29 metre easement narrows to 5.49 metres in width on the property to the east of Kasempa, ie on the Smith land, is because in 1946, when that easement was purchased by Clissold/Lascelles, the predecessor in title to the Pitts, it was purchased from Smith's predecessor as part of their front garden, in order to enable through access into Gwynne Avenue. The Gwynne Avenue dimension is six metres, so as little as possible was taken in order to prevent disturbance to the Smith predecessor's frontage yet enable through access.

10. Mr Ambrosie, a director of Kasempa, uses the Smith easement as well as his own for access during construction of his four townhouses. Mrs O'Connor uses the Smith easement and the Kasempa easement for access into the rear of 10 Staughton Avenue, and wishes to continue to be able to use the easement for a three unit redevelopment of her land which is currently before the council. The Pitts do not currently use the easement at all, except to walk through, as a shortcut, to Gwynne Avenue and the Lorne beach and shops. In the same way, other beneficiaries of the easement, such as Mr Matthews, use the 15.29 metre wide easement over the Pitt, O'Connor, Kasempa and Smith land as a shortcut walking path to the Lorne beach and shops. Until approximately eight months ago, there were no gates or fences around the southern south-western or south-eastern sides of the Pitt property. However theft of wood has necessitated the construction of light fencing with a padlocked gate at the Lascelles Terrace extension south-western end of the Pitt property.

11. The easement over the Pitt land is heavily wooded with mature trees. The easement over the O'Connor land is partially wooded with the ability for a four wheel drive vehicle to wind itself around the trees. The easement over the Kasempa land was unimpeded by trees in the past, with the exception of blackberries (as it was an open horse paddock) and the easement over the Smith land is also unimpeded. The planting of shrubs in accordance with the endorsed plan sheet 5 of 5 as part of permit 97/7104 (the Kasempa townhouse permit) would still provide sufficient area for a vehicle to traverse various parts of the easement.

12. >From a practical perspective, post and wire fences along side boundaries of the Kasempa land, that existed prior to 4 June 1998 which commenced a distance of approximately 3.5 metres to 4.5 metres from the rear boundary, effectively directed vehicular traffic to the southern edge of the easement.

13. Further, the three metre wide gate that has been erected on the common boundary between the Pitts' land at No 8 and the O'Connor land at No 10 Staughton Avenue, also, from a practical point of view, confines vehicular traffic at the present time to the southern edge of the easement.

14. The perspectives of all parties and submittors to this hearing were varied. Mr Matthews, who only walked it, was anxious to preserve the easement as a walking track and buffer against further degradation of the character of the area (as he characterised the existing four townhouse Kasempa development) and was anxious that it not be used for vehicular access. Mrs Pitt made it plain that she did not wish to redevelop her heavily wooded three blocks of land in her lifetime, but wished to keep active and open her rights of carriageway over the easement, for any future redevelopment of her property. It is noted however that her blocks are closer to the Lascelles Terrace extension (southern portion) although John Pitt at 8 Staughton Avenue would have no easement rights across Sheila Pitt's land to access the Lascelles Terrace extension. Apparently, his rights proceed in an easterly direction towards Gwynne Avenue. Mrs Pitt is anxious to maintain the treed and environmentally sensitive character of the area. Miss O'Connor is also anxious to preserve as much vegetation and keep the easement environmentally sensitive, however is anxious to use it as a carriageway as part of her current application to council for a three double storey townhouse development (the third (rear) townhouse gaining access solely from Gwynne Avenue over the easement). Certainly, mail and garbage access would be simpler from the Gwynne Avenue side rather than Staughton Avenue not just because of distance, but also because Gwynne Avenue is at a closer grade than the steep Staughton Avenue access. The Harris' agenda is to keep the easement as far away as possible from their property and their bungalow which is almost hard up against the easement. Other outbuildings are also very close. Other submittors' agendas are to preserve the easement as a buffer against further development in that south-east corner, complaining that the existing four house development is already insensitive, bulky, harsh and overpowering so as to militate against any additional dwelling on the easement. Kasempa, on the other hand, wishes to develop the easement with a fifth unit using the entire easement access rights across the Smith land to provide its vehicular access to the fifth unit.

15. In 1997 Kasempa Pty Ltd applied to develop 12 Staughton Avenue with four double storey townhouses. The council determined to grant a permit and neighbouring objectors, the Murnanes and Others, took council's decision on appeal, while Kasempa Pty Ltd took some conditions on appeal. That appeal was heard on 11 June 1998 by Member Marsden, who handed down his decision on 22 June 1998 permitting the development of four units on the subject land (`the Marsden decision').

16. In the meantime, and before the Marsden decision was handed down, on 18 March 1998 Kasempa's surveyors lodged an application for planning permission to subdivide 12 Staughton Avenue into four lots corresponding with the four units permitted in the Marsden decision, and, applied at the same time for modification of the 15.27 metre wide easement across the rear of the site down to 3 metres.

17. On 22 July 1998 the surveyors advised the council of minor variations to the position of the actual setbacks of walls. On 24 June 1998, Permit No. 97/7104 was issued by the Responsible Authority for the construction of four double storey townhouses, subject to conditions including a condition requiring plans to be endorsed.

18. On 11 August 1998, the council issued a permit for the subdivision of those four townhouses. On 20 August 1998 Kasempa's, surveyors wrote to council expressing concern that they only received a single page permit with a fault in the numbering. On 21 August 1998 the council issued a corrected permit pursuant to its powers under the Planning and Environment Act 1987, section 71(1), because it realised that it had accidentally omitted some referral authorities' conditions.

19. On 4 September 1998 the council again amended the permit, purportedly under s.71(1)(a) when Kasempa's surveyors again pointed out to it that their application for variation of the easement had not been formally mentioned in the planning permit preamble. The amendment added in the words "and modification of easement for carriageway purposes as reserved by instrument of transfer 1866687", although the plan originally endorsed by the Council when it first issued the permit on 11 August 1998, simultaneously endorsed a plan depicting a "modified carriageway easement 3m wide". On 29 April 1999, the Responsible Authority endorsed plans numbered sheets 1, 2, 3, 4 and 5 of 5 in 97/7104 together with a schedule of material and colours, pursuant to the planning permit for the 4 townhouse development. A landscape plan (sheet 5 of 5) forms one of the endorsed plans and includes a few clusters of shrubs of a 3 metre height by a 3 metre spread within the area marked as 15.29 metres easement.

20. On 24 July 1999 Mrs Sheila Pitt and Mr John Pitt (her son) issued a s.89 request to amend permit 98/7421 (amended) issued on 11 August 1998, varying the 15.29 metre wide easement. On 3 December 1999, Mr Warwick Nelson of Harwood Andrews, Lawyers for the Responsible Authority, wrote to the Victorian Civil and Administrative Tribunal in the following terms:

I am now authorised by the Responsible Authority to concede that the component of the application for permit relating to modification of the easement was not given any consideration by the Responsible Authority or its authorised delegate. It follows that no consideration was given to the issue of material detriment in relation to this aspect of the application. In these circumstances it would appear to us that planning permit 98/7421 should be modified in order to delete from the permit the authority to modify the easement. I understand however that the respondent permit holder does not concede that the permit should be amended.

21. Around 15 November 1999, in Application No. 99/8667 Kasempa applied to the Responsible Authority for a re-subdivision of Lot 4 and Plan of Subdivision No. 425045H into two new lots 5 and 6 permitting the existing fourth townhouse to be contained within Lot 5 and a potential house site for a fifth townhouse to be included in the proposed Lot 6. The boundaries of Lot 5 would generally correspond with the walls of the fourth townhouse except for a 2m wide strip on a lower rear side. Lot 6 is proposed to be approximately 267sq metres in area and surrounded on 3 sides by common property linking to the common property for the fourth unit development and includes a 3m strip containing the carriageway easement along the rear boundary. This application also seeks to vary the width of the carriageway easement down to 3m from its current width of 15.29m and was made without prejudice to Kasempa's case that the former subdivision permit 98/7421 (amended) already authorises this subject to the Victorian Civil and Administrative Tribunal determination.

22. Around 15 November 1999 a concurrent Application No. 99/8668 was submitted with the two lot subdivision application and easement variation, seeking approval to construct a fifth dwelling on the land within proposed Lot 6 and over land affected by the existing 15.29 metre wide carriageway easement.

23. On 17 April 2000, the Responsible Authority determined to refuse that re-subdivision application on the following grounds:

1. The subdivision is prohibited in accordance with the provisions of Clause 109-2 of the Surf Coast Planning, Book 2, Local Section, Chapter 2 as the lot size is less than 650sq metres.

2. The subdivision would be contrary to the purposes and decision guidelines of the Coastal Residential zone and local policies of the existing Surf Coast Planning Scheme.

3. The lot sizes created would fail to meet the provisions of the Coastal Residential policy adopted by the Responsible Authority for the proposed new VPP Planning Scheme.

4. The subdivision would result in an overdevelopment of the site having regard to provision of private open space for residents of the dwellings, excessive site coverage with buildings and hard surface areas, poor provision for car parking and access to the rear lot, and inadequate opportunities for landscaping that would allow development on the site to b lend into the surrounding landscape.

5. The reduced carriageway width would be insufficient to properly cater for vehicular movements between Gwynne Avenue benefiting properties to the west of the site.

24. In the Officers report the following references were made to the reduction in easement width issue:

Whilst there is uncertainty as to the outcome of the Victorian Civil and Administrative Tribunal hearing with respect to the earlier approval for variation of the carriageway easement, this application must be considered on its planning merits. The reduction of width of the easement to 3m approved by 98/7421 was an inadvertent mistake made by Planning Officers, and proper consideration of the application was not given at the time. That it was previously approved at 3m should therefore not prejudice the Committee's determination on the merit of this matter with respect to the current proposal. This application allows the matter to be considered afresh.

It is unclear why the easement was originally created at the existing width (15.29m), which is of a size that would provide for the full construction of a traditional road pavement. None of the sites west of the site at 4-10 Staughton Avenue that also are affected by this easement have yet been developed, therefore there has been little demand for any formal construction of a pavement. Traffic along the easement is in dispute, but on any view is relatively low and informal based on present development patterns. Even when these sites are developed in the future, construction of a "road" as such would not be justified based on the low traffic volumes that would use the easement. An extension of Lascelles Terrace runs south of Staughton Avenue adjacent to the western boundary of the Pitt property at 4 Staughton Avenue, providing a connection to the carriageway on title, however it is unlikely that this reserve would be constructed for a road in the future, thereby precluding any formal through connection between Gwynne Avenue and Staughton Avenue through these properties. In practice, the easement is likely only to serve the future access needs of directly abutting properties. It is therefore agreed that some reduction in the width of the easement could be contemplated. What needs to be determined is to what extent the width should be reduced.

There is clearly a need to ensure that property owners benefiting from access via the carriageway are not unreasonably disadvantaged by any change, and that adequate access is maintained not only for existing development, but also for future development that may occur. Objectors have strongly expressed this view. With respect to this, it is noted that a current planning application for the adjoining property at 10 Staughton Avenue seeks approval for three units, one of which would have sole access from the rear. Land further west at 4-8 Staughton Avenue is in single ownership by the Pitts and could be redeveloped such that several dwellings may be designed for rear access along the easement.

The proposed new carriageway width of 3m is not supported on the grounds that it would provide inadequate access for vehicles accessing properties to the south and west of the site. The Shire's Technical Services Unit has assessed the plans and advised that the minimum width of the easement should be 5.49m to match the width of the easement immediately east of the site where it turns a corner to meet with Gwynne Avenue. Given the restriction of width of the carriageway to Gwynne Avenue at present, there seems little practical value in requiring an easement much greater in width than 5.49m. Such width would allow for two vehicles to pass one another, this being important due to the length of the access (which stretches along the rear of several properties fronting Staughton Avenue) and difficulties of vehicles reversing backwards should vehicles meet head on. This would be consistent with the width of access required under the Good Design Guide for Medium Density Housing for an accessway between 60m and 100m in length that services less than 40 dwellings or 100 vehicles per day (Technique 3, Element 8). No footpath would be considered necessary due to the low traffic volumes anticipated, and services could be provided from Staughton Avenue. A wider reserve to cater for these facilities is therefore not warranted. A 3m wide carriageway would not allow for vehicles to pass and is not considered appropriate on traffic engineering grounds.

It is considered that maintenance of the easement at 5.49m would not unreasonably disadvantage benefiting property owners, and would provide an acceptable planning outcome by providing for efficient access for any future development to the west. The recommendation normally made in this instance would be for approval of the easement reduction subject to a condition that a modified plan be presented showing the increased width to that specified above. This component of the application could normally be dealt with as a conditional approval, but as the two components (that is subdivision and modification to the easement) are linked in the one application, it is considered that the best course of action is to refuse the application as a whole.

25. On 15 December 1999, Deputy President Bruce directed a broadscale advertising of the s.89 request to owners of land benefited by the easement.

26. On 5 May 2000, Deputy President Bruce made further directions as to listing, exchange of witness reports, filing of submissions, exchange of statement of facts, and the potential for an application for review by Kasempa of the decision in Permit Application No. 99/8667 to be fixed for hearing at the same time as this s.89 request. Deputy President Bruce's direction read:

Any Application for Review arising out of the decision of the Council in Permit Application No. 1999/8667 which is lodged with the Tribunal on or before 5 May, 2000 shall be fixed for hearing with this application as regards that part of it dealing with the application for a permit to vary the width of the carriageway easement reserved in transfer 1866687.

27. Although the order was dated 5 May 2000, it is noted that the date of the Directions Hearing, when this would have been advised to the parties, was 19 April, 2000.

HOW COUNCIL'S DELEGATE HANDLED THE VARIATION OF EASEMENT APPLICATION

28. The Tribunal finds the following description of the Council's action, taken from Mr Larmour-Reid's statement of evidence dated 12 June 2000, appropriate:

The application appears to have been initially dealt with simply as a four lot subdivision without regard for the proposed modification to the easement. The Officer's report (Attachment B) states that public notice was not required `as it was considered that no additional material detriment would be incurred by any person as a consequence of the proposed subdivision as compared with the four unit development previously approved for the site'. No reference is made to any potential detriment associated with the modification of the easement.

Furthermore, the report header describes the application as seeking to `Subdivide the land into four lots'. Although the site description makes reference to the existence of a `17.3m' wide carriageway easement along the rear of the property, there is no assessment of the merits of the application to modify the easement and no reference to the decision requirements of s.60(5) of the Planning and Environment Act 1987, which specifically relate the removal or variation of restrictions on title created before 25 June 1991.

The planning file indicates that the process of assessing the modification of the carriageway easement was flawed. There is no evidence to suggest that the Responsible Authority satisfied itself in accordance with s.52 of the Planning and Environment Act 1987 that the modification would not cause material detriment to any person; neither does it appear that regard was had for the decision requirements at s.60(5). The decision to amend the permit under s.71 compounded previous errors.

An application has also been lodged to develop three dwellings on the adjoining property at 10 Staughton Avenue (Application No. 99/8658). Sole access to the rear dwelling would be via the subject carriageway easement. A number of objections have been received and the Responsible Authority has yet to determine the application.

29. It is convenient at this point to include a description of the planning controls and policies as enumerated by Mr Jamie Larmour-Reid, Planning Consultant at Fisher Stewart Pty Ltd, as one portion of the respondent's defence and support of the varied easement relied on the planning controls.

30. The current Surf Coast Planning Scheme is an `old format' scheme which is due to be superseded imminently. The subject land is zoned "Coastal Residential (Clause 109) and pursuant to Clause 7-1.5 (State section) permit is required to create or remove or vary an easement or restriction". Pursuant to the new format planning scheme, the land will be rezoned Residential 1 and will be subject to a variety of policies and an environmental significance overlay. Whereas the old format planning scheme supports a density of one dwelling per 400sq metres of site area, with the possibility of granting permission for one dwelling per 350sq metres of site area (subject to no significant vegetation loss, and no detrimental impact upon amenity, or significant visual impact on the streetscape character), the VPP policy as expressed in the Municipal Strategic Statement decreases the minimum density proposed for Lorne to one dwelling per 450 square metres. Mr Larmour-Reid explains:

It is clear that in developing the new format planning scheme the Council has tried not only to maintain the level of development control currently applied in Lorne, but also to achieve improved development outcomes. There is a strong community view reflected in the panel report that the current controls have not provided sufficient protection for the character and vegetation cover of Lorne. The proposed policies and controls seek to address this issue by providing far more comprehensive guidance with respect to development and vegetation control, and by applying an indicative lot size of 450sq metres compared to the 350sq metres now applying in central Lorne.

Section 87(1)(c) and Section 87(1)(e)

31. Ms Quigley submitted and Mr Nelson conceded that Permit No. 98/7421 (amended) should be amended pursuant to the Planning and Environment Act 1987, s.87(1)(c) because there had been a "material mistake in relation to the grant of the permit". Both lawyers submitted that the following mistakes were made:

(i) failure to realise that the planning application involved a variation of easement from 15.29m to 3m in width;

(ii) failure to realise that beneficiaries of that easement needed to be notified of that portion of the application pursuant to the Planning and Environment Act 1987, s.52(1)(a)(d);

(iii) purported amendment of the permit to include the variation permission pursuant to the accident slip or omission power under the Planning and Environment Act 1987, s.71(1), when no such power existed.

32. Ms Quigley also submitted and Mr Nelson also conceded that pursuant to s.87(1)(e) there had been a failure to give notice in accordance with s. 52(1)(a) and (d) of the Planning and Environment Act 1987.

33. Mr McKenzie for the permit holder submitted that to jump the s.87(1)(c) or (e) hurdles, with relation to the giving of notice, it is not sufficient for the Pitt's or the Council to say that Council did not even turn its mind to it. The hurdles they have to jump is that even if they had turned their mind to where the notice was required, they would have given notice in any event because they could not have been satisfied "that the grant of the permit would not cause material detriment to any person". Mr McKenzie submitted that had Council turned its mind, it still would not have directed notification because no material detriment would have been cause to any person for the following reasons:

(i) the beneficiaries were not completely deprived of carriageway rights - they were only reduced from 15.29m to 3m;

(ii) carriageway rights on other parties lands, for example the O'Connor's and the Pitts lands were not reduced at all so they could use the entire breadth of that easement for greater manoeuvrability;

(iii) there was no legal entitlement to the exclusive use of the whole of the Kasempa easement for carriageway purposes, but only as to such amount as reasonable for carriageway traversal and the 3m diminution provides such a reasonable area for traversal;[1]

(iv) when the Council subsequently turned its mind, on 17 April 2000, it felt a 5.49m easement was preferable to the 3m width, but maintained its support of diminution of the easement;

(v) the easement diminution or reduction would have positively benefited the redevelopment of land because of the evidence of submittors such as Peter Matthews, that residents did not want to encourage the development of a 15.29m wide road or accessway which would encourage cars through this quiet and for the time being, relatively undisturbed part of the neighbourhood.

34. The Tribunal disagrees with Mr McKenzie's submission. We find it inconceivable that any application for planning permit to vary the potential width of an easement, both on town planning grounds and on interference with proprietary legal rights grounds, would not be advertised both to adjoining owners under s.52(1)(a) or to beneficiaries of the easement pursuant to s.52(1)(d). We find it untenable to maintain that diminution of proprietary rights "would not cause material detriment to any person" who was the beneficiary of those rights. The cases are clear enough on the issue of depriving persons of their right to participate in the planning process. See Broadfield Estates Pty Ltd v Hume City Council, Appeal No. 1998/12305; Hall v City of Doncaster and Templestowe (1992) 10 AATR 68. We say rhetorically, how much clearer is this obligation in the case of interference with proprietary rights. Further, and in any event, the council has conceded that its failure to notify is also a "material mistake in relation to the grant of the permit" on its part and that had it turned its mind to the need for notice it would most certainly have advertised the application. Finally, the council's own attitude of dissatisfaction with the three metre width indicates the variety of opinions, issues and considerations that need to be taken into account before a decision is made.

Section 91(3)(a)(i) - Pitts Unaware Of The Application For Variation Of Easement

35. It was conceded by Kasempa that the s.89 requestors could not reasonably be expected to have been aware of the application for the permit in time to lodge an objection, as they were never notified by council.

Section 89(3) - Request Made As Soon As Practicable

36. It was conceded by Kasempa that the Pitts overcome this hurdle as their request was lodged on 24 July 1999, after Mrs Sheila Pitt made enquiries of council on 1 July 1999 of why building materials were being placed over the easement.

Section 88(b) Limits On The Power To Cancel Or Amend A Permit

37. The Tribunal only has power to amend this permit "at any time before that development is substantially carried out" "if the permit relates to any other development of land".

38. `Development' is defined under s.3 as including:

(d) the subdivision or consolidation of land, including buildings or airspace.

39. The definition of development is silent on whether it includes a variation of an easement.

40. As `land' is defined to include "(c) any estate, interest, easement, servitude, privilege or right in or over land" there is an ability to imply that development includes a variation of easement.

41. What happened in this case is that, in order to minimise damages, and be as practical and helpful as possible to Kasempa, the subdivision application was split into two limbs, with the subdivision limb proceeding through to the Titles Office without the modification of easement component in the plan (ie the plan was amended to delete the modification to easement). The easement variation limb was removed from the plan of subdivision sent to the Titles Office and remains in the state of limbo where a permit has issued but a plan of subdivision including such a variation has not had a `statement of compliance' signed off against it by the council. This is a prerequisite step to the ability to lodge at the Titles Office.

42. In this manner, the Tribunal has jurisdiction to exercise its powers under ss.87-91 of the Planning and Environment Act 1987.

43. Mr McKenzie submitted that the development was `substantially carried out' thereby depriving the Tribunal of jurisdiction because the following steps had occurred:

(i) permit No 97/7104 issued 24 June 1998 for the development of the four double storey townhouses was practically complete, with all townhouses built;

(ii) the developer, Kasempa, had incurred substantial financial commitments with regard to the development of the units;

(iii) this subject permit, being for subdivision of those units, is related to the development permit 97/7104 and that linkage means that the permit for variation of easement should now not be amended;

(iv) the plan of subdivision of the four townhouses is proceeding through the Titles Office, after a statement of compliance has issued from council (for a plan excluding the easement variation).

44. The Tribunal disagrees with Mr McKenzie's assessment of `substantially carried out'. Had the permit encompassed both the physical development of the buildings as well as the subdivision and easement variation, in one package so to speak, then that would have been a different story with its own characteristics. However, Kasempa decided to divide its development into two parts - one for the physical development of the buildings (permit 97/7104) and one for the subdivision of those buildings (permit 98/7421 (amended)). That being the case, the `permit' referred to in s.88(b) is only concerned with this latter permit and not with the separate permit relating to the construction of buildings and works. Apropos this subject permit, this portion of the development is not substantially carried out because the council has not issued a statement of compliance in respect thereof and it cannot even be lodged for registration at the Titles Office. Indeed, this was the purpose of the consent recorded in the Tribunal's directions dated 15 December 1999.

The `Easement' vs `Restriction' Argument - Section 60(2) and (5) Planning and Environment Act 1987

45. Ms Quigley submitted that Kasempa had a higher bar than the normal s.52(1) bar to jump as regards `material detriment' because the s.60(5) mandate is to prevent the responsible authority from granting a permit which allows the removal or variation of a `restriction' unless it is satisfied that the owner of any land benefited by the restriction will be unlikely to suffer any detriment of any kind (including any perceived detriment) as a consequence of the removal or variation of the restriction and, if that owner has objected to the grant of a permit, the objection is vexatious or not made in good faith.

46. The terribly high bar that this clause imposes on the responsible authority has been discussed in Scuderi v City of Hume (1998) 22 AATR 261.

47. Whether this higher bar applies depends on whether an easement is a `restriction' within the meaning of s.60(5) of the Planning and Environment Act 1987. `Restriction' is not separately defined in the Planning and Environment Act 1987, but s.60(2) confines its definition to "within the meaning of the Subdivision Act 1988". In the Subdivision Act 1988, `restriction' means a restrictive covenant or a restriction which can be registered or recorded in the Register under the Transfer of Land Act 1958. All parties made submissions on whether the easement was such a `restriction' or not. Ms Quigley maintained it was and that whereas all easements are restrictions, not all restrictions are easements. Mr Nelson and Mr McKenzie were of the opinion that `easement' and `restriction' had two separate meanings, as illustrated by the many instances where the same paragraph mentioned them both.

48. As we are of the opinion that there has been both a material mistake in relation to the grant of this permit as well as a failure to give notice in accordance with s.52 under the ordinary planning and proprietary rights tests, there is no need for us to go into a discourse on whether the higher s.60(5) bar would also have operated to justify an amendment of the permit issued by the responsible authority.

Section 91(3) - `Substantial Disadvantage' And `Just And Fair'

49. To the end of proving `substantial disadvantage' and what would be `just and fair in the circumstances', both the Pitts and Kasempa produced expert town planning evidence to justify or refute the Tribunal's amendment of the permit.

50. Both Mr Keldeman and Mr Larmour - Reid emphasised in their evidence the policy framework within which the consideration of planning permit applications in Lorne must be carried out.

51. The existing planning scheme, under Book 2, Local Section, Chapter 2, provides that regard must be had to the local policies contained therein. Clause 101 - 1.1 states that:

"The township of Lorne and its environs are considered to be an area of natural beauty and special significance to be conserved and enhanced".

52. Clause 101 - 1.2 identifies the key assets of Lorne which include the natural tree cover within the township and the timbered ridges and foothills of the Otway Ranges which form a densely wooded backdrop to the township.

53. Local policy which supports these assets emphasise the protection of Lorne's natural scenic resources, the limitation on the expansion of the township to selected areas, and the protection and enhancement of the natural tree cover within and around Lorne.

54. The Residential Development local policy at Clause 101 - 1.5 emphasises the need for future development to accommodate the needs of all user groups while at the same time achieving a built form that is sensitive to the natural beauty and scenic qualities of the township.

55. The provisions of the Coastal Residential Zone seek to give effect to the policy framework. The zone purposes emphasise the provision of opportunity for varied residential densities and the need for development to be compatible with the natural beauty of the area. Permits are required to use land for more than one dwelling, for all buildings and works and for vegetation removal, and for subdivision.

56. The VPP format planning scheme has been recently adopted by the Council following a substantial redrafting in response to extensive public submissions and Panel recommendations. The VPP format scheme in its adopted form goes beyond a translation of existing policies and controls into the new format, and seeks to achieve development outcomes which are superior to those achieved under the existing planning scheme, particularly in terms of protecting and enhancing Lorne's character and vegetation cover. An indicative lot size of 450 square metres has been adopted for Lorne in the VPP format scheme, compared to the 350 square metre lot size currently applying.

57. In terms of assessing the development potential of the land to the west of the review site (the O'Connor land and the Pitt land, and the Waverley Avenue land which abuts the carriageway easement) both Mr Keldeman and Mr Larmour - Reid agreed that the combination of the existing vegetation cover and the existing and proposed planning scheme policies and controls, would lead to a likely dwelling yield of between 8 to 10 dwellings. We do note however that they arrived at their respective conclusions in different ways and relying on different assumptions. We are nevertheless satisfied that the figure of 8 to 10 dwellings is reasonable.

58. The basis of Mr Larmour-Reid's evidence was that the retention of the carriageway easement in its existing configuration is necessary in order to provide the opportunity for an alternative to the Staughton Avenue access to the land to the west of the review site, and that this alternative access is required to provide the design flexibility which will be needed to facilitate both the development of the land and the retention of vegetation. It was Mr Larmour - Reid's evidence that the retention of the carriageway easement would obviate the need to construct and widen Staughton Avenue beyond the review site, and for long, wide hard surface driveways to be constructed from Staughton Avenue to provide access to the rear of each of the lots.

59. Mr Larmour - Reid was also of the view that the provision of access to the rear of the lots via the carriageway easement would assist in fire and garbage truck access, and that construction could be based on the design criteria for an "access place" in the Victorian Code for Residential Development (VicCode 1), and could be sited and designed so that it meanders through the existing vegetation. In order to facilitate this approach to the design of the carriageway easement construction, the retention of the existing width is required to provide the necessary siting and design flexibility.

60. Mr Kelderman on the other hand was of the view that the narrowing of the carriageway easement width to 3 metres on the review site, and its location on the southern boundary of the review site, would be adequate to provide reasonable access to the lots further to the west and would not prejudice the future alignment of constructed access within the carriageway easement on these other lots. Mr Kelderman agreed with Mr Larmour-Reid that if vehicular access was to be made available to these lots via the carriageway easement, it would need to be designed and sited sensitively in order to minimise vegetation loss. Indeed, it was Mr Kelderman's evidence that while the carriageway easement could be reduced in width to 3 metres on the review site, retention of the existing width is desirable on both the O'Connor and Pitt land, having regard to the level of vegetation on their land.

61. Under questioning from the Tribunal, Mr Kelderman stated that in his view, access to the rear of the O'Connor and Pitt land via the carriageway easement was not necessary to facilitate appropriate development of that land and that the construction of vehicular access along the rear of the lots may lead to unnecessary and additional vegetation loss. However, access to garbage and mail facilities off the easement on Gwynne Avenue was far shorter than any corresponding access for a rear unit to Staughton Avenue. It was also Mr Kelderman's view that ad hoc construction of access within the carriageway easement should be avoided and that an integrated and coordinated approach would be necessary to achieve appropriate design and construction standards.

62. We agree with both Mr Larmour-Reid and Mr Kelderman that the development of the Pitt and O'Connor land will necessitate the application of a design approach which emphasises the minimisation of vegetation removal, in order to achieve the policy outcomes of the existing and the adopted VPP format planning scheme, and that this is likely to impact on potential dwelling yield and dwelling size. In our view, the provision of access to the rear of the lots is not a prerequisite for the appropriate development of those lots, but we do acknowledge that the existence of the carriageway easement may provide increased flexibility in designing a development which is appropriately sensitive and responsive to the characteristics of the land. However, on the basis of the information available to us, we are not able to conclude whether or not the use of the carriageway easement is appropriate. To reach this conclusion we would need to have available to us a site analysis and design response of sufficient detail which would allow an assessment of the relative merits of alternative design solutions. The provision of material of this nature was beyond the scope of the matters currently before us and we would not expect to have it provided to us. The salient point however, is that in our view, in the absence of such material and until such time as detailed design has been carried out, the opportunity to use the carriageway easement ought not be prejudiced by ad hoc variations to its width and alignment on individual lots in the manner proposed by Kasempa. Indeed, as Mr Kelderman conceded, it may even be an academic exercise in the event that the fifth unit is prohibited by the Tribunal on the Kasempa land.

63. In our view the location of a 3 metre (or 5.49 metre) wide vehicular access on the southern boundary of the review site would limit design options for the construction of the carriageway on the abutting lots. It appears to us that its effect would be to largely determine the alignment of the constructed portion of the carriageway on the abutting lots toward the southern boundary, an alignment which may or may not be appropriate, but which in any event is determined in the absence of the detailed design and coordinated approach which both Mr Keldeman and Mr Larmour-Reid considered necessary, and which we support. Further, one must not overlook the impact it would have on the Harris property at 17 Gwynne Avenue, abutting land up against the house and bungalow as it would if permitted in its Kasempa desired configuration.

64. It follows from the above that in our view, while a narrowing of the carriageway easement on individual lots or over its entire length (or potentially its closure) may ultimately be appropriate at same point in the future, it is premature for any narrowing to occur at this time, and until the development parameters for benefiting land has been established.

65. Accordingly, it would be just and fair to cancel the easement variation permit in these circumstances. The permit holder will be compensated pursuant to the Planning and Environment Act 1987, s.94(2), with the Tribunal not being constrained to promote what could possibly be a poor planning outcome from an overall and integrated perspective. We have ordered accordingly, in the terms set out above.

66. The Pitts sought costs from the Council up to 3 December, 1999, being the date that Council "fell on its sword", admitted negligence and liability and admitted that the permit should be amended pursuant to s.87. Although the Pitts are an innocent party and claimed all their costs, they maintained that after 3 December 1999, it is Kasempa that should pay the balance because Kasempa forced the proceedings to continue rather than concede the permit should be amended by the Tribunal to delete the easement variation.

67. The Council sought its costs after 3 December 1999 from Kasempa, on the basis that:

(i) Kasempa forced on the 3 day hearing instead of conceding the permit should be amended pursuant to s.87

(ii) It was because of Kasempa's procrastination that the merits of the fifth unit proposal on the easement was not also before the Tribunal at the same time as this hearing as foreshadowed by the Directions of Deputy President Bruce on 5 May, 2000. Mr Nelson for the Council maintained that he tried to repair the damage as quickly as possible to avoid and limit any losses, expense, inconvenience and unnecessary hearings for all parties. He wished to be recognised for having made that concession at as early a date as possible, and in an open and frank manner.

68. At the end of the hearing on the third day, Kasempa put its position as to costs but by facsimile transmission dated 29 June, 2000 reconsidered its position as follows:

"Unfortunately late on Wednesday afternoon as the hearing was concluding the writer representing the Respondent Kasempa indicated certain matters as to Kasempa's position on costs.

We are instructed to put to the Tribunal on the question of costs the following:

1. In the event that Kasempa is successful in resisting the proposed amendment of the permit then the Council ought pay Kasempa's costs of the hearing.

2. In the event that Kasempa is unsuccessful in resisting an amendment to the permit then the Council ought pay Kasempa's costs of the hearing.

3. Reference has been made to s.94. For these purposes the way in which the Council ought bear the Respondent's costs ought not be linked to those provision in the circumstances revealed.

This letter is written on the basis that a copy has been provided to each of the other parties and they do not seek to object to it being provided to you."

69. Mr McKenzie defended his clients continuation of the proceeding (in the event that they lost) on the basis of the "chicken and egg" problem. Which comes first he asked rhetorically? Did the fifth unit redevelopment Application for Review come first, making the easement variation and academic exercise if the fifth unit was prohibited by the Tribunal, or did this Review come first in that it was only worthwhile proceeding with the re-subdivision of lot 4 and the fifth unit, if the carriageway easement is reduced to allow a suitable building envelope on the vacant area at the rear. A building envelope cannot feasibly be accommodated on the vacant area of the site if the existing carriageway easement is maintained.

70. In our opinion, having been giving the express opportunity by Deputy President Bruce to bring both applications on at the one time, it is inappropriate for the developer to have proceeded with this hearing and to seek to obtain a variation of the easement under a s.89 request rather than by the normal planning process. Had both matters been the subject of the same hearing, the circumstances may have been different, but since Kasempa has not been successful in its arguments we see the division of costs as requested by both Pitt and Council as a reasonable distribution of the burden. Although in this jurisdiction costs do not normally follow the event, we think that this case is one of the special exceptions to the normal s.109 Victorian Civil and Administrative Tribunal rule on costs. We agree that the Council should not be further `burdened' once it `came clean' and `fell on its sword', as it was Kesempa that elected to continue the proceedings.

71. We accordingly order that costs incurred before 3 December 1999 be paid by Surf Coast Shire Council to Sheila Clare Audas Pitt, John Astley Pitt and Kasempa Pty Ltd on a party/party basis assessed on County Court Scale B to be taxed by the Registrar in default of mutual agreement while costs incurred after 3 December 1999 be paid by Kasempa Pty Ltd to Sheila Clare Audas Pitt, John Astley Pitt and Surf Coast Shire Council.

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[1] Gale on Easements; Halsbury Vol 14; Easements and Profits a Prendre