(a) Whether there is an implied easement, as claimed by the Applicant, for a right of way in favour of the Applicant's property over that part of the Respondent's property located to the west of the Respondent's title boundary that is located adjacent to the Applicant's land?

(b) Whether the implied easement claimed by the Applicant over the Respondent's land will need to be determined the (sic) Supreme Court of Victoria in proceeding numbered SECI 2025 0603, prior to the hearing of this matter?

(c) Whether the proceedings presently before the VCAT ought be stayed until such time as the Supreme Court of Victoria in proceedings numbered SECI 2025 06030 are determined and finalised?

1. At the commencement of the practice day hearing, the applicant:
   1. conceded that question (a) above, was not a question that the Tribunal has jurisdiction in this review proceeding or in its original jurisdiction to answer;
   2. conceded that question (b) was overstated but in any event sought no more than the answer to question (c);
   3. clarified that question (c) was the real question that the applicant wanted the Tribunal to answer.
2. With the consent of all parties, I proceeded to hear the applicant's 'stay application' at the practice day hearing. There formal mechanism to give effect to the applicant's request for a temporary stay is by adjourning the application to the registry until the determination or other finalisation of the Supreme Court proceedings. I will use the term 'stay' throughout these reasons for brevity.
3. In answer to my enquiry, the applicant informed me that the parties have not received any hearing or other fixture dates from the Supreme Court in relation to the Supreme Court proceedings.
4. For the reasons that follow, I have determined that the application for a temporary stay and/or adjournment of this proceeding until the determination or finalisation of Supreme Court of Victoria proceeding SECI 2025 06030 is refused.

1. The Tribunal received pre-filed written submissions from the parties addressing all three of the questions posed by the applicant. I have had regard to those submissions as relevant to question (c) and as supplemented by the oral submissions of the parties.

1. Relying on the observations of Quigley J in Mondib Group Pty Ltd v Moonee Valley CC [2022] VCAT 990 ('Mondib'), the applicant submitted that:
   • It was 'necessary in the interests of justice' that the applicant should not be 'unduly denied the opportunity to prosecute his claim in the Supreme Court';
   • It will be a waste of time and resources to prepare and attend a 2-day hearing before the question of the existence of the implied easement has been resolved;
   • The Tribunal's resources will also be wasted if there is no certainty as to the existence of the easement;
   • If the applicant is successful in the Supreme Court, there would necessarily need to be changes to the development proposed over the area of land subject to the easement;
   • Until the Supreme Court determines the property rights claimed by the applicant, the Tribunal cannot properly assess:
     • the lawful access arrangements to the subject land;
     • the impacts, burdens and rights upon the applicant's land;
     • whether the proposal is inconsistent with the relevant planning controls.
   • A hearing on the merits on 27 and 28 January 2026 is speculative pending the determination of the Supreme Court proceeding;
   • Determining the 'Respondent's 'merits' hearing now creates prejudice, uncertainty and procedural unfairness'. The existence of the terms of the easement is a legal antecedent issue. That issue must be resolved first to ensure certainty, fairness, efficiency in decision-making and avoidance of inconsistency of decisions;
   • The Supreme Court proceeding is meritorious and based on 34 years of unfettered use of the implied easement over part of the subject land.

1. Council submitted a stay of this proceeding is not required as there are opportunities available to the respondent to amend any approved development plans to accommodate the easement if declared by the Supreme Court to exist. The risk that any approved plans require amendment is one borne by the respondent.

1. The respondent submitted:
   • There is presently no encumbrance on the title of the subject land noting an easement of any kind in favour of the applicant;
   • The existence or lack of existence of an implied easement does not impede consideration of the permit application on its merits noting the particular permit triggers requiring consideration under the Merri-bek Planning Scheme ('scheme');
   • If an implied easement were found to exist and the Supreme Court proceeding is determined in favour of the applicant, then amendment of any permit that may issue from this proceeding may be required to ensure that the right of way over part of the respondent's land is not obstructed by any development or landscaping. Relocation of the bin storage area, removal of the boundary fence and removal or relocation of a small amount of landscaping requires minor amendment to the existing plans sought to be approved in this proceeding;
   • There is nothing in the Planning Act or the scheme that bars grant of a permit that would authorise something contrary to an easement;
   • It is inappropriate to delay resolution of an administrative decision on the basis of a purported property right that may exist;
   • The respondent accepts that there is a risk that it may not be able to develop the land as proposed in the application plans if the applicant is successful in the Supreme Court proceeding;
   • The respondent will suffer prejudice if this proceeding were stayed because a hearing in this proceeding has been listed and there is no certainty when the Supreme Court proceeding will be heard.

1. Neither the PE Act or the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') expressly provides for the stay of a proceeding commenced under the PE Act. That said the powers conferred on the Tribunal under s 80 and s 98 of the VCAT Act is sufficiently broad to adjourn a proceeding pending the outcome of a particular event, such as the determination of a proceeding in another jurisdiction.
2. It is this context that Quigley J briefly identified in Mondib, in her view, the principles applying to the grant of a stay as follows:

1. To grant a stay or adjournment of the hearing pending the outcome of the Supreme Court proceeding, the Tribunal needs to consider whether it is necessary in the interest of justice, whether it is the best use of the Tribunal's and the parties' resources, and whether the proceeding as scheduled may lead to the consequences of inconsistent decisions.
2. It is not a matter solely of whether it may be more convenient to the parties. The Tribunal may, under s 80 of the VCAT Act, give directions at any time during the proceeding to do whatever is necessary for the expeditious and fair hearing and determination of a proceeding. Section 98 requires the Tribunal to conduct each proceeding with as little formality and technicality and determine each proceeding with as much speed as the requirements of the VCAT Act and the enabling enactment, and a proper consideration of the matters before it, permit. The Tribunal can regulate its own procedure.
3. In my view, it is in the interest of justice that this proceeding, being an application for review commenced under s 82(1) of the PE Act, proceed to hearing on 27 and 28 January 2026 as set out in the Tribunal's order of 31 July 2025.
4. I am unable to ascertain whether or not there is merit in the Supreme Court proceeding. It was variously submitted on behalf of the applicant that the Supreme Court was meritorious relying on assertion of facts made by way of submission or within the application for review. The Tribunal does not have before it any material on which to make any findings of fact regarding the merits of the Supreme Court proceeding, for the very limited purpose of an application to adjourn this proceeding. Just because the applicant asserts that there is merit in his claim, does not make it so.
5. I also reject the submission that the hearing of the application in this proceeding will deny the applicant the opportunity to prosecute his claim. The opportunity to prosecute the claim in the Supreme Court will not be affected in any way by a determination in this proceeding.
6. Further, the timing of the commencement of the Supreme Court proceeding was a matter entirely within the applicant's control and as can be seen from the chronology set out earlier, the applicant did not commence the Supreme Court proceeding until 15 October 2025 (after the commencement of this proceeding) and the allocation of dates for the compulsory conference and hearing. In addition, the applicant did not make application for an adjournment of this proceeding until 17 November 2025, one month after the commencement of the Supreme Court proceeding.
7. There is nothing before the Tribunal to indicate when a determination in the Supreme Court is likely. The applicant's response to my question as to what stage the Supreme Court proceeding had reached leads me to conclude that it is at a very early stage given that no directions have yet been given to the parties. This weighs against the adjournment of this proceeding as the delay to the finalisation of this proceeding is not a short one that may be accommodated by a short adjournment of this proceeding.
8. The prejudice occasioned to the respondent by a lengthy adjournment of the final hearing weighs against the grant of the adjournment.
9. The land over which it is asserted exists an implied easement forms part of the subject land and is under the ownership of the respondent. That will remain the case even if the applicant is successful in the Supreme Court proceeding. The land over which the easement is claimed is not, land under the ownership of the applicant.
10. There is nothing in the PE Act that either requires a permit application to be accompanied by the consent of the dominant easement holder or prohibits the grant of a permit that is contrary to the dominant rights conferred by easement whether implied or appearing as an encumbrance on title. Indeed, applications for permits may be made without the consent of the owner of the land to which the permit application applies. This weighs against the grant of an adjournment.
11. I do not agree that the merits of the permit application cannot be properly considered without determination of the Supreme Court proceeding. There may be a difference in position between the parties as to what are material relevant facts before the Tribunal at the time of the final hearing in this proceeding and there may be a difference of position on whether the area of land over which it is claimed the implied easement exists should be developed. It is a matter for the Tribunal to hear from the parties and make findings of fact as part of its determination. Those facts will direct the Tribunal's enquiry as to the relevant matters to be considered under each permission required under the scheme.
12. In addition, the Tribunal is an expert tribunal and its members are well equipped to consider the merits of a planning application where there is some dispute about how certain part of land should or should not be developed. The best use of the Tribunal's resources is on balance better deployed in the application proceeding to hearing and providing the parties with its determination on the review application (that in all likelihood will be before any determination is made in the Supreme Court proceeding).
13. Finally, if as a result of this proceeding, the respondent obtains a permit that approved the current permit application plans, future amendments may be made to those plans (whether by the secondary consent mechanism or under s 72 of the PE Act for any number of reasons). Amendment of approved or endorsed permit plans do not of themselves amount to inconsistent decisions. Indeed, both mechanisms exist to allow for an appropriate response to change circumstances or conditions.
14. However, amendment of the approved plans may not be the only option open to the respondent to resolve the existence of any implied easement and development of that part of the subject land affected by the easement. Easement rights may be relinquished by agreement on terms acceptable to both the dominant and servient easement holders. This option would not necessitate the amendment of any approved plans.
15. I am not satisfied that there is any reason in the interest of justice or fairness, or that it is necessary on the facts before me, to adjourn this proceeding until the determination or finalisation of the Supreme Court proceeding. The applicant's application to adjourn the hearing is refused.