VCAT Melbourne, 55 King Street,

MELBOURNE VIC 3000

Details of the location of the hearing will be published on the Tribunal's website, under 'Upcoming Hearings' on the afternoon of the day prior to the hearing - www.vcat.vic.ogv.au/upcoming-hearings

1. The requirements of paragraphs 9 and 10 of the Tribunal's orders of 4 February 2025 are confirmed.

Daniel Lendvai, town planner, Whittlesea City Council.

1. This proceeding was commenced on 21 Janaury 2025 by the applicant under s 36(1) of the Subdivision Act 1988 (Vic) ('Subdivision Act') seeking the Tribunal's leave to burden part of land situated at 185 Gordons Road, South Morang, Victoria 3752 ('subject land') for the purposes of drainage and sewerage easements.
2. The applicant is the owner of land situated at 181 Gordons Road, South Morang ('applicant's land') and seeks to develop that land in accordance with an endorsed Development Plan dated 13 July 2021 (pursuant to Schedule 6 of the Development Plan Overlay of the Whittlesea Planning Scheme) and Planning Permit No. PLN-37900 ('Permit').
3. In August 2024, the applicant made application to the responsible authority to amend the Permit.
4. On 23 December 2024, the responsible authority issued an amended permit containing condition 16 which provides:

To ensure the efficient servicing of the land at 181 Gordons Road, South Morang requires the owner of that land to acquire easements over the land at 185 Gordons Road, South Morang for drainage and sewer generally in accordance with easements as shown on Creation of Easement prepared by Peter Richards Surveying (Version1, Surveyors File Ref 13929). The acquisition of such easements will not result in an unreasonable loss of amenity in the area.

1. By order of 4 February 2025, the application was listed for a practice day hearing on 14 March 2025 to consider:
   • the implications of regulation 37 of the Subdivision (Procedures) Regulation 2021 (Vic), including whether notice of intention to apply for leave to acquire an easement has been given to the relevant owner of the land; and
   • whether Yarra Valley Water should be given notice of the proceeding.
2. At the practice day hearing held on 14 March 2025 ('first practice day hearing'), I granted an adjournment of the practice day hearing to 28 March 2025 to allow the respondent further time to obtain legal representation in this proceeding.
3. On 21 March 2025, the respondent requested a further adjournment of the practice day hearing on the ground that they had not been able to secure representation. The respondent's request for a further adjournment could not be granted on the papers because although responsible authority consented to the request, the applicant did not. Accordingly, the parties were informed that the practice day hearing would proceed on 28 March 2025.
4. At the practice day hearing on 28 March 2025, the respondent withdrew their request for an adjournment of the practice day hearing. I proceeded to consider the purposes of the practice day hearing as set out in the Tribunal's order of 4 February 2025. Below are my reasons for the orders made.

1. Regulation 37 of the Subdivision (Procedures) Regulations 2021 (Vic) ('SP Regulations') provides:

An application to VCAT under section 36(1) of the Act may be made within 30 days after the day on which the applicant gives the owner of the land that is burdened or to be burdened by the easement a notice of intention to apply.

1. The applicant made the following three primary submissions regarding compliance with regulation 37 of the SP Regulations:
   1. The language of 'may be made' is not couched as a prerequisite or requirement which must be done prior to an application being made to the Tribunal.
   2. The intent of the regulation is to inform the landowner of the land to be burdened by the easement of any forthcoming application.
   3. Even if it is determined that the compliance with regulation 37 of the SP Regulations is a precondition to an application being made to the Tribunal under s 36(1) of the Subdivision Act, the Tribunal may disregard any noncompliance with that regulation where it is in the interests of justice to do so.
2. The responsible authority submitted that it is for the applicant to persuade the Tribunal as to the interpretation and application of regulation 37 of the SP Regulations.
3. The respondent that regulation 37 of the SP Regulations required that prior notice of intention to make application to the Tribunal be given to the respondent and as this had not occurred the application should be summarily dismissed.

1. I reject the applicant's interpretation of regulation 37 for the following reasons:
   1. Regulation 37 confers an opportunity on a person to make application to the Tribunal under s 36(1) of the Subdivision Act.
   2. The timing of when an application is to be made is clear from the unambiguous language used. If an application is to be made, it may be made within a 30-day period after a notice of intention to make such an application is given to the owner of land burdened or to be burdened. Grammatically what 'may be made' is the application to the Tribunal and not the notice of intention to make such an application.
   3. This interpretation is consistent with the purpose of regulation 37 which is not only to provide notice to an owner of land that is burdened or to be burdened ('burdened owner') that a person is contemplating making an application under s 36 of the Subdivision Act to the Tribunal but also to provide the burdened owner with certainty as to when such an application will be made, if it is to be made. Without such time limitation, a burdened owner will be left in a state of uncertainty as to whether a discussion with an adjoining owner some months or even years previously may manifest itself in an application to the Tribunal at the timing and convenience of the adjoining owner. The applicant's interpretation does not result in a fair outcome for all stakeholders in this process.
2. It is therefore a prerequisite to the making of an application under s 36(1) of the Subdivision Act that prior notice of an intention to make an application is given to a burdened owner not more than 30 days before the application to the Tribunal is made.
3. I therefore find that the applicant was required to give the owner of 185 Gordons Road, South Morang, Victoria, 3752 notice of intention to apply to the Tribunal under s 36(1) of the Subdivision Act and such notice was required to be given within the 30 day period prior to the date of making the application under s 36(1) of the Subdivision Act with the Tribunal on 21 January 2025.
4. The applicant conceded that a notice of intention was not given to the respondent.
5. I therefore find that in the 30-day period prior to the applicant making the application to the Tribunal under s 36(1) of the Subdivision Act on 21 January 2025, the applicant failed to give the respondent a notice of intention to make application to the Tribunal under s 36(1) of the Subdivision Act.

1. Clause 62 of the Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1988 (Vic) ('VCAT Act') provides:

62 Tribunal may disregard failures to comply

The Tribunal has jurisdiction to determine a proceeding under a planning enacting despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it is the interests of justice to do so.

1. Clause 2 of Schedule 1 of the VCAT Act includes the Subdivision Act as a 'planning enactment' for the purposes of the VCAT Act.
2. An application under s 36(1) of the Subdivision Act to the Tribunal is one brought in the Tribunal's original jurisdiction under s 43 of the VCAT Act.
3. The power conferred under clause 62 of the VCAT Act is a very broad power that permits disregard of a failure to comply with a procedural requirement under a planning enactment if the Tribunal considers it in the interests of justice to do so. I am cognisant that such a broad discretion should be exercised cautiously.
4. On the facts of this matter, I am satisfied that it is in the interests of justice to disregard the applicant's failure to give to the respondent a notice of intention as required under regulation 37 of the SP Regulations for the following reasons:
   1. The long history of dealings between the applicant and the respondent since 2017 (as set out in the applicant's written submissions) regarding the development of the applicant's land and the burden sought to be imposed on the respondent's land. It cannot be said that the respondent could reasonably be surprised by the application;
   2. Notice of the application that commenced this proceeding was given by the applicant to the respondent on 17 February 2025; and
   3. The effluxion of time since 17 February 2025, being over 30 days from the when the respondent became aware of the applicant's application to the Tribunal.
5. In the circumstances, it is in the interests of justice to disregard the applicant's failure to comply with regulation 37 of the SP Regulations because to do so will facilitate the efficient and speedy resolution of the application before the Tribunal without prejudice to the respondent.

1. I am satisfied from the material before the Tribunal that Yarra Valley Water has been notified by the applicant of its application under s 36(1) of the Subdivision Act and that there are no other persons who may have an interest in the outcome of the application.
2. I am not satisfied at this time that the respondent should be ordered to permit access to the subject land. The applicant submitted that the respondent has not provided details of the location of the infrastructure detailed in the respondent's amended statement of grounds that will be affected by the proposed easements. Keeping in mind the nature of the application currently before the Tribunal, I am of the view that the question of whether access is required to address the concerns of the respondent expressed in that statement of grounds is a matter that may benefit from discussion at a compulsory conference.
3. All parties agreed that there would be utility in a compulsory conference being scheduled in this proceeding and in line with my discussion with the parties at the practice day hearing I have ordered that one take place on 30 April 2025.
4. In its written submission the applicant also seeks further orders regarding the concurrent exchange of evidence and requiring a conclave of expert witnesses in the same field to occur. I am not satisfied that such orders should be made at this time and the need or desirability of such orders can be raised by the applicant at the upcoming compulsory conference.