VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1037/2023
Permit Application no. P22154	
CATCHWORDS	
Section 82 of the Planning and Environment Act 1987 (Vic); Whether a permit is required for the creation of an easement under clause 52.02 of the Glenelg Planning Scheme.   	

Applicant	Robert Dunn	

Responsible Authority	Glenelg Shire Council	
Respondent	Printz Pty Ltd	
SUBJECT LAND	East Street Narrawong Victoria CA 1-18 Sec 3 Township of Narrawong	
HEARING TYPE	Preliminary hearing	
DATE OF HEARING	29 November 2023	
DATE OF ORDER	30 November 2023	
CITATION	Dunn v Glenelg SC [2023] VCAT 1330  	

Order
Outcome of preliminary hearing
1	A permit is required under clause 52.02 of the Glenelg Planning Scheme for the creation of an easement.
2	A person may apply under s.23 of the Subdivision Act 1988 (Vic) to create an easement over land that the person owns.
Joinder
3	The following persons are not joined as joint applicants to the proceeding – 
Glenn Relf, Denise Dowsley, Graeme Burch, Christine Borowiecki, Martin Boyer, Helen Boyer, Wayne Bateman, Rae Bateman, John Arthur Lee, Anne Penny, Alister Penny, Dianne Burch, Christine Hart, Christopher Hulonce, Roger Bennett, Lauren Kivisalu and Doug Pollock.
Administrative mention
4	An administrative mention is listed for 2 February 2024. No appearance is necessary. 
5	By 2 February 2024, the parties must inform the Tribunal in writing, and provide a copy to all other parties –
a.	whether the proceeding has settled and if so, whether the parties request any order to be made by the Tribunal to effect the settlement;
b.	whether a further practice day hearing is requested and if so, the purpose of the practice day hearing;
c.	whether any other procedural orders are requested.
Compulsory conference
6	The details and requirements for the compulsory conference set out in the Tribunal’s order of 29 August 2023 are confirmed.
Hearing
7	The details and requirements for the hearing set out in the Tribunal’s order of 29 August 2023 are confirmed.

S P Djohan
Acting Senior Member	

Appearances
For applicant	Neil Longmore, solicitor.
	
For responsible authority	Matthew Berry, town planner, Glenelg Shire Council.
	
For respondent	Bruce Wilson.

Reasons
purpose of preliminary hearing
8	By order dated 20 October 2023, the Tribunal listed a preliminary hearing in this proceeding to determine – 
a.	Whether a permit is required under clause 52.02 of the Glenelg Planning Scheme for the creation of an easement;
b.	If a permit is required, whether a person may apply under s.23 of the Subdivision Act 1988 (Vic) to create an easement over land that the person owns.
9	Written submissions from the applicant and Council were received by the Tribunal on 20 November 2023 (in compliance with the Tribunal’s order of 20 October 2023). The respondent has not provided written submissions addressing the purpose of the preliminary hearing.
Summary
10	The answer to the questions to be determined at the preliminary hearing are as follows – 
a.	Yes, a permit is required under clause 52.02 of the Glenelg Planning Scheme for the creation of an easement;
b.	Yes, a person may apply under s.23 of the Subdivision Act 1988 (Vic) to create an easement over land that the person owns.
Statutory context
11	Section 6A of the Planning and Environment Act 1988 (Vic) (the ‘P&E Act’) provides – 
(1)	In this section and in section 6(2)(g) “restriction” has the same meaning as in the Subdivision Act 1988.
(2)	Subject to subsection (3), a planning scheme may require a permit to be obtained before a person proceeds under section 23, 24A or 36 of the Subdivision Act 1988.
(3)	A planning scheme must not –
(a)	prohibit or restrict – 
(i)	the creation, variation or removal of easements or restrictions by agreement, prescription, abandonment, or otherwise by operation of law; or
(ii)	the creation, variation or removal of easements or restrictions by or under an Act other than the Subdivision Act 1988; or
(iii)	a person from proceeding under the Subdivision Act 1988 in relation to the creation, variation or removal of an easement or restriction referred to in subparagraph (i) or (ii); or
(b)	regulate or provide for – 
(i)	the variation or removal of a covenant under Part 7 of the Heritage Act 2017 or section 3A of the Victorian Conservation Trust Act 1972; or
(ii)	the variation or removal of an easement required to be created in favour of a public authority, Council, Minister or other person under an Act other than the Subdivision Act 1988, without the consent of that person; or
(c)	allow a person to proceed under section 23 of the Subdivision Act 1988 to create, vary or remove an easement or restriction over land that the person does not own.
(4)	A provision included in a planning scheme under section 6(2)(ga) is in addition to section 362A of the Land Act 1958, and a person may choose whether to proceed under that section or the provision of the planning scheme.
12	Although s.6A of the P&E Act allows for a planning scheme to require a permit to be obtained prior to a person proceeding under section 23, 24A or 36 of the Subdivision Act 1988, it does not mandate that a planning scheme must regulate the creation, variation or removal of easements, or restrictions. 
13	Section 23(1) and (2) of the Subdivision Act 1988 (Vic) provides – 
(5)	If a planning scheme or permit regulates or authorises the creation, removal or variation of an easement or restriction, the owner of the land burdened or to be burdened by the easement or restriction must, in accordance with the planning scheme or permit and with the Planning and Environment Act 1987, lodge a certified plan at the Office of Titles for registration.
(6)	The consent of any other person who has an estate, interest or claim in the land is not required to the certification and registration of a plan referred to in subsection (1).
14	Clause 52.02 of the Glenelg Planning Scheme (the ‘planning scheme’) is entitled ‘Easements. Restrictions and Reserves’. That clause forms part of a suite of particular provisions derived from the Victorian Planning Provisions. In particular, clause 52.02 is one of a number of clauses that require, enable or exempt a permit under the planning scheme.
15	Clause 71.05 of the planning scheme provides that the requirements of particular provisions apply to the specified categories of use and development and other matters in addition to any provisions which apply due to any other provision of this planning scheme.
16	Clause 52.02 provides – 
52.02		Easements, Restrictions and Reserves
			Purpose
To enable the removal and variation of an easement or restrictions to enable a use or development that complies with the planning scheme after the interests of affected people are considered.
Permit requirement
 A permit is required before a person proceeds:
•	Under Section 23 of the Subdivision Act 1988 to create, vary or remove an easement or restriction or vary or remove a condition in the nature of an easement in a Crown grant.
•	Under Section 24A of the Subdivision Act 1988.
•	Under Section 36 of the Subdivision Act 1988 to acquire or remove an easement or remove a right of way.
This does not apply:
•	If the action is required or authorised by the schedule to this clause.
•	In the circumstances set out in Section 6A(3) of the Planning and Environment Act 1987.
•	If the person proceeds under Section 362A of the Land Act 1958.
•	In the case of a person proceeding under Section 36 of the Subdivision Act 1988, if the council or a referral authority gives a written statement in accordance with Section 36(1)(a) or (b) of the Subdivision Act 1988.
In this clause, restriction has the same meaning as in the Subdivision Act 1988.
Decision guidelines
Before deciding an application, in addition to the decision guidelines in clause 65, the responsible authority must consider the interests of affected people.
Note:
Section 23 of the Subdivision Act 1988 provides that either the council or the person benefitting from the direction must lodge a certified plan at the Titles Office for registration.
consideration
Is a permit required under clause 52.02 of the Glenelg Planning Scheme for the creation of an easement?
17	Council submitted that ‘it cannot ignore the permit requirement listed in the scheme just because it is not explicitly expressed in a purpose of the clause’. Council also notes that the permit requirements in 52.02 refer to ‘acquire an easement’ or ‘remove a right of way’, and that both phrases are not referred to in the purpose of the clause.
18	The applicant’s submissions traced the history of clause 52.02 since the commencement of the new format planning schemes in the late 1990s and noted that when introduced the clause did not have a stated purpose. The history of clause 52.02 set out below differs from that contained in the applicant’s submissions, however nothing turns on the differences.
19	The new format planning scheme for Glenelg was began on 24 December 1998 -Version NPS1.
20	Version NPS1 contained clause 52.02 in the following terms – 
52.02		EASEMENTS, RESTRICTIONS AND RESERVES
				A permit is required before a person proceeds:
•	Under Section 23 of the Subdivision Act 1988 to create, vary or remove an easement or restriction or vary or remove a condition in the nature of an easement in a Crown grant.
•	Under Section 24A of the Subdivision Act 1988.
•	Under Section 36 of the Subdivision Act 1988 to acquire or remove an easement or remove a right of way.
This does not apply:
•	If the action is required or authorised by the schedule to this clause.
•	In the circumstances set out in Section 6A(3) of the Planning and Environment Act 1987.
•	If the person proceeds under Section 362A of the Land Act 1958.
•	In the case of a person proceeding under Section 36 of the Subdivision Act 1988, if the council or a referral authority gives a written statement in accordance with Section 36(1)(a) or (b) of that Act.
In this clause, restriction has the same meaning as in the Subdivision Act 1988.

Note:		Section 23 of the Subdivision Act 1988 provides that either the council or the person benefiting from the direction must lodge a certified plan at the Titles Office for registration.
21	As is evident from the terms of clause 52.02 when the planning scheme began on 24 December 1998 – 
a.	There was no stated purpose for that clause;
b.	The permit requirements are identical to the permit requirements in the current version of clause 52.02.
22	The current version of clause 52.02 commenced on 20 September 2010 introduced by Amendment VC71.
23	The explanatory report for Amendment VC71 states that an ‘objective’ is added to clause 52.02 and that objective is taken from clause 19.01 – Subdivision (State Planning Policy Framework).
24	The brief description of the effect of Amendment VC71 as it appears on the Department of Transport and Planning website is as follows – 
Brief description
Revises and replaces Clauses 10 to 19 of the SPPF. Redistributes the existing policies under the following new themes: Settlement, Environmental and landscape values, Environmental risk, Natural resource management, Built environment and heritage, Housing, Economic development, Transport and Infrastructure. Updates references to various Government documents. Introduces new policies into the SPPF to give effect to the Victorian Integrated Housing Strategy (Clause 16) and Melbourne 2030: A planning update Melbourne @ 5 million (clause 11, 12, 16, and 19). Amends Clause 52.02 Easement, restrictions to introduce a new objective and decision guideline. Introduces a new Clause 52.46 Brothels. Updates the incorporated document Activity Centres and Principle Public Transport Network 2010 in Clause 81.01.
(Tribunal’s underlining)
25	The List of Changes for Amendment VC71 contains the following – 

26	Advisory Note 31 (relevant to Amendment VC71) states in part – 
Particular Provisions
Amendment VC71 introduces Particular Provision 52.46 for Brothels and makes a change to the Particular Provision 52.02 Easement, Restrictions and Reserves as a result of a tidy up of SPPF provisions.
The new Particular Provision 52.46 Brothels includes a new requirement to implement the proposed changes to the Prostitution Control Act 1994. It requires a responsible authority to impose a condition on a planning permit that the operation of the brothel must not commence until a licence is issued under the Prostitution Control Act 1994.
A new objective and decision guidelines have been added to Particular Provision 52.02 Easement, Restrictions and Reserves as a consequential change of the SPPF review.
27	In the version of the planning scheme immediately before 20 September 2010, there were two stated objectives of clause 19.01 as follows – 
Objective
To ensure the design of subdivisions achieves attractive, livable and sustainable neighbourhoods.
To control the subdivision and consolidation of land and the removal and variation of easements and restrictions through planning schemes, within the framework of the Planning and Environment Act 1987 and the Subdivision Act 1988.
28	Clause 19.01-2 contained the General Implementation clause as follows – 
General implementation
In the development of new residential areas and in the redevelopment of existing areas, subdivisions should be designed to create livable and sustainable communities by:
•	Contributing to an urban structure where networks of neighbourhoods are clustered to support larger activity centres on the regional public transport network.
•	Creating compact neighbourhoods that have walkable distances between activities and where neighbourhood centres provide access to services and facilities to meet day to day needs.
•	Creating a range of open spaces to meet a variety of needs with links to open space networks and regional parks where possible.
•	Providing a range of lot sizes to suit a variety of dwelling and household types to meet the needs and aspirations of different groups of people.
•	Integrating housing, work, shopping, recreation and community services to provide a mix and level of activity that attracts people, creates a safe environment, stimulates interaction and provides a lively community focus.
•	Contributing to reducing car dependence by allowing for: public transport that is easy to use; safe and attractive spaces and networks for walking and cycling; and subdivision layouts that allow easy movement within and between neighbourhoods.
•	Contributing to environmentally sustainable development by designing energy efficient lots, incorporating water conservation, stormwater management and waste water treatment techniques and promoting waste reduction and reduced air pollution.
•	Contributing to an attractive built environment by creating neighbourhoods that emphasise existing cultural heritage values, well designed built form and landscape character.
•	Protecting and enhancing native habitat and discouraging the spread and planting of noxious weeds.
•	Being accessible to people with disabilities.
Planning schemes should enable:
•	Referral of applications for subdivision and plans of subdivision to relevant statutory authorities and relevant Government agencies responsible for water, sewerage, drainage, electricity, gas and telecommunications services, the management of water supply and drainage catchments, the management of fire risk areas, the allocation of water rights or access to a freeway, highway, main road, tourist road or forest road.
•	The placing of open space requirements on development proposals.
•	The removal or variation of easements and restrictions to enable use or development that complies with planning schemes after the interests of affected people are considered.
•	The adjustment of boundaries to comply with other legislation.
(Tribunal’s underlining)
29	Considering all the relevant documents supporting the introduction of Amendment VC71, the changes introduced to clause 52.02 were not designed to remove any of the existing permit requirements. Instead, it appears that the drafters of Amendment VC71 decided that the underlined part of clause 19.01-2 General Implementation was an appropriate description of the overall objective of clause 52.02. In my view, one can only come to that view if one does not consider the extent of the permit requirements of the then existing clause 52.02. Further, why it is that all of the supporting documentation for Amendment VC71 save for the List of Changes refers to the introduction of an ‘objective’ for clause 52.02 when what was in fact introduced was a ‘purpose’ remains inexplicable.
30	The applicant submitted that it is reasonable not to focus too critically on what was meant by the way the purpose of clause 52.02 was expressed when it was introduced into planning schemes in 2010. The applicant also submitted that – 
Surely it would be a practical remedy of an oversight rather than an unacceptable act of judicial activism. Courts are not allowed to go beyond parliamentary intention by creating their own legislation, but they are allowed to intervene where common sense dictates that a word has been inadvertently omitted. That appears to be the case here.
31	I do not intend to speculate as to the intention of the original drafters of clause 52.02 as to the scope, meaning or dare I say the ‘purpose’ of the purpose of clause 52.02.
32	What is clear from s.6A(2) of the P& E Act is that a planning scheme may require that a permit be obtained before a person proceeds under ss.23, 24A or 36 of the Subdivision Act 1988. That is what the operative part of clause 52.02 does by requiring a person obtain a permit under the planning scheme before a person proceeds – 
•	under s. 23 of the Subdivision Act 1988 to create, vary or remove an easement or restriction or vary or remove a condition in the nature of an easement in a Crown grant.
•	under s.24A of the Subdivision Act 1988.
•	under s.36 of the Subdivision Act 1988 to acquire or remove an easement or remove a right of way.
33	The permit requirement does achieve the purpose of clause 52.02, and more. That the purpose of clause 52.02 is poorly drafted and only reflects some of the actions that may be undertaken under ss.23, 24A and 36 of the Subdivision Act 1988 is no reason not to apply to clear language of the permit requirement, after all the purpose of a particular clause is not commonly drafted to make reference to all permit triggers arising under that clause. It appears to me that the verbatim selection of the one general implementation paragraphs of clause 19.01 following the ‘tidy up’ of the SPPF undertaken by Amendment VC71 without consideration of the breadth of the permit requirements has led to the purpose of clause 52.02 being described in a more limited way than it should have been.
34	In my view, no judicial activism is required to harmoniously interpret clause 52.02 with s.6A of the P&E Act and the relevant provisions of the Subdivision Act 1988 such that clause 52.02 does, and always has since 24 December 1998, required a permit for the creation of an easement under s.23 of the Subdivision Act 1988.
If a permit is required, may a person apply under s.23 of the Subdivision Act 1988 (Vic) to create an easement over land that the person owns?
35	In its written submission, the applicants acknowledged that the s.23 of the Subdivision Act 1988 allows a person to apply to create an easement over land owned entirely by one person. The common law position that the dominant and servient tenement must be in different ownership is therefore altered by s.23 of the Subdivision Act 1988.
36	I agree with the reasons of the Tribunal in GBM Properties (Vic) Pty Ltd v Yarra Ranges SC [2016] VCAT 440 that s.23 can be used by an owner of land to create, vary or remove an easement over land owned by that person. 
Joinder
37	A number of original objectors seek joinder as joint applicants with Robert Dunn. No adequate reason was advanced on behalf of these original objectors as to why they did not join with Mr Dunn in his application for review when it was lodged or why these persons did not lodge their own application for review within the time limits prescribed under the P&E Act. 
38	As to whether the interests of the joinder parties are affected by the proceeding and so therefore should be joined, I am satisfied that those interests will be advanced by Robert Dunn given that all joint applicants must ‘speak with one voice’ and cannot advocate individual interests or issues and must join with Mr Dunn in the issues he has advanced.
Conclusion
39	In conclusion – 
a.	A permit is required under clause 52.02 of the planning scheme for the creation of an easement;
b.	A person may make application for a permit to create an easement affecting land in that person’s ownership; and
c.	The original objectors listed in paragraph 3 of the Tribunal’s order of 5 September 2023 are not joined as joint applicants to this proceeding.

S P Djohan
Acting Senior Member