Mr Paul Connor of Counsel, instructed by McMahon Fearnley, Solicitors (conditional appearance).

1 This matter relates to an application under s 36 of the Subdivision Act 1988. The Applicant, as owner of the land at 87 Killara Road, Campbellfield, seeks leave to acquire a carriageway easement over part of the adjacent land at 89 Killara Road, Campbellfield.

2 It appears that the named Respondent, John Anthony Dal Pozzo, is no longer the owner of the adjacent land at 89 Killara Road, although the Tribunal did not receive clear evidence on this point. Mr Connor of Counsel made a conditional appearance on behalf of the owner and occupier, Killara Road Pty Ltd. Mr Connor's conditional appearance also related to jurisdiction.

3 Mr Craig Griffiths, a town planner from Hume City Council, also appeared in related proceedings and was heard briefly in this matter, despite the Council not (yet) being a party to the application.

4 Section 36 of the Subdivision Act 1988 provides relevantly that, if in the course of certain specified planning processes (including an application for a planning permit), a Council makes a statement in writing according to certain specified criteria (including the acquisition by an owner of an easement over adjoining land), the owner may apply to the Tribunal for leave to acquire the easement compulsorily.

5 The s.36 process is complex, and contains multiple steps - some of which are consequential on the completion of the preceding steps. Perhaps this is intentional given that the ultimate consequence of a successful application is a rare instance under Victorian law where a private person can compulsorily acquire an easement over the land of another.

6 The matter is made more complex by Clause 52.02 of the Hume Planning Scheme which requires an owner to obtain a planning permit before proceeding under s 36, although an exemption from the permit requirement arises where the Council's statement in writing has already been given under that section.

7 In the present matter, the Applicant has brought three related proceedings before the Tribunal:

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an application under s 77 of the Planning and Environment Act 1987 against the refusal of the Council to grant a permit under Clause 52.02 (P390/2007);

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an application under s 40(2) of the Subdivision Act 1988 against the refusal of the Council to make the statement in writing under s 36 of that Act relating to the acquisition (P393/2007); and

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an application under s 36 of the Subdivision Act 1988 for leave to acquire the carriageway easement (ie. this proceeding, W23/2007).

8 The first two matters are brought within the Tribunal's Planning and Environment List, with the latter brought within the Real Property List. The directions hearing was conducted by Deputy President Dwyer who is appointed to hear matters in both lists.

9 Mr Peake for the Applicant argued that it was appropriate for the Tribunal to hear and determine all matters together, as a matter of practical convenience and given the interrelationship of the issues.

10 Unfortunately, however, the wording of s 36 of the Subdivision Act 1988 is clear. The owner may only apply to the Tribunal for leave to acquire an easement after the other matters under the section have been satisfied. It is not just the determination of the planning matters which must precede a determination of the application for leave, which might otherwise have enable the matters to be heard together and determined sequentially. Section 36 requires that the Council's statement in writing be obtained before an owner can even apply for leave.

11 The Applicant has yet to obtain a planning permit and/or a statement in writing from the Council, and the two related proceedings P390/2007 and P393/2007 are designed to achieve this outcome. This means that unless and until those two proceedings are determined favourably to the Applicant, the necessary preconditions to the bringing of the application for leave to acquire the easement have not been met and the application for leave (ie. this application, W23/2007) is premature. The Tribunal therefore has no jurisdiction to deal with it at the same time as the hearing of the planning matters in applications P390/2007 and P393/2007. Those planning matters must be determined first, before the owner can make the application for leave, and the application for leave is therefore struck out.