1. The application for review is allowed. The decision of the Responsible Authority is set aside and substituted. A permit is granted.

2. The Responsible Authority is directed to issue a permit for the removal of the right of carriage way easement created by Transfer 781439 from Certificate of Title Volume 8648 Folio 372 in so far as it affects the land coloured green and that part of the blue-hatched land shown as having a width of 13'2" on the map on the said Certificate of Title.

_____________________________

For: Responsible Authority: Ms T Brezzi, Deacons Lawyers

1. This is an application for review of the decision of the Responsible Authority to refuse to grant a permit for the removal of part of a carriageway easement located on land known as 245-253 Chapel Street, Prahran.

2. The carriageway easement was created by Transfer 781439 on 13 June 1915 when a parcel of land was transferred to the Mayor, Councillors and Citizens of the City of Prahran and at the same time a carriageway easement was granted over part of land that was retained by the Transferors.

3. It is proposed to remove that part of the carriageway easement that runs along the rear of 245-243 Chapel Street as well as a small slither, 3'2" in width that runs along the edge of a road at the rear of an adjoining building.

4. The carriageway easement is accessed via a road that runs east-west from Chapel Street and runs in a north-south direction from the rear of the Town Hall Library. The land transferred in 1915 forms part of what is known as the Town Hall Car Park and provides car parking for Council officers and employees. There is an additional slither that crosses the road at the point where the entry to the car park is gained, this slither is not proposed to be removed.

5. The Responsible Authority refused the application for permit on the grounds that the carriageway easement is a pubic highway and as beneficiary of the easement the Council objected to its removal.

6. After considering the oral and written submissions of the Responsible Authority and Applicant and the evidence of Mr Wiser the Tribunal gave an oral decision allowing the application for review and determining to grant a permit. The Tribunal reached its conclusion on the following matters and adopting the relevant tests set out in K J Barge & Associates v City of Prahran 10 AATR 345:

* There was no indication of continued need or a requirement for use of the carriage way area proposed to be removed by the Council, access was still gained to its car park. The Council had some time ago fenced off the car park and no access was gained either by vehicles or legally by pedestrians to the car park from the easement area proposed to be removed.

* There would be no impact on the surface drainage from the car park and the underground drainage pit could be readily accessed as it was not located in the easement. The easement gave carriageway rights not drainage rights. Reference to access to a gas meter was not restricted as this serviced one of the tenants of the building.

* No material detriment will occur to the Council by the removal of the easement. It is located at the rear of the property, is a dead end and is used by tenants of the property and their invitees which could include persons carrying out deliveries. There was no indication the Council or other members of the public used or accessed the area.

* The planning scheme at Clause 19.01-2 supports the removal of the easement "to enable use or development that complies with planing schemes". The land is located within a Business 1 zone. The removal will allow better control by the property owner over the area and better ability to organise its use by tenants.

* The easement had not been declared a public highway under Section 204(1) Local Government Act 1989. Whilst the public were not prevented from using the road there was no evidence that the general public did so other than persons connected to the property.

* It was not considered necessary to include in the removal the slither of blue-hatched land 3'2" wide that abutted a portion of road at the rear of an adjoining property. The removal of this area from the proposal results in ensuring access to the adjoining property is not affected, it not being clear as to the width of the area shown as road on the relevant certificate of title to that land and provides a continued ability for the Council to access its car park in this location if it so requires.

7. A permit is granted for the removal of the right of carriageway created by Transfer 781439 from Certificate of Title Volume 8648 Folio 372 in so far as it affects the land coloured green and that part of the land blue-hatched shown as having a width of 13'2" on the map on the said Certificate of Title.

_____________________________