Let’s get this show on the road!

Often, our clients' projects require the temporary or permanent use and occupation of land to construct improvements, or to support nearby construction.

If some or all of that land is a road at law, it can only be used for the project if it is temporarily closed, which is not always possible, or discontinued.  The danger of not properly discontinuing the land's status as a road is that the use or occupation of the land may amount to public nuisance, with legal consequences. 

What is a road?

In Victoria, a road includes any area of land that is a highway at common law.  More specifically, a highway is an area of land, at soil level or in stratum, over which the public may pass on or over at all times.

It is not necessary that land is physically a road for it to be a highway at common law.  The land may be suitable only for pedestrian access or for use by bicycles or horse-riders, rather than cars or other vehicles.  Even where land is only capable of passage by ferry, the ferry route itself may be a highway.  As long as the land meets the legal requirements, it will be a highway, and therefore a road.

Roads also include areas of land (at soil level or in strata) regulated under statutes, such as the Road Management Act 2004 (RM Act).  Under the RM Act, roads are generally categorised as freeways, arterial roads, non-arterial State roads and municipal roads.

Who owns roads?

If you wish to temporarily or permanently access or occupy land which has the status of a road, you will probably need to negotiate with the land owner on the scope of the required rights and changes to the road's status.

As a general principle, the Crown owns land over which there is a freeway or arterial road, regardless of whether the road is at surface level or in stratum, as well as certain land declared as road under general legislation governing Crown land.  Otherwise, roads are generally owned by the municipal council of the municipal district in which the road is located.

Acquiring and dealing with land which is a road

If land is a road, it is generally not possible to exclusively access or occupy the land unless its status as a road is temporarily paused (where this option is available under legislation) or permanently discontinued.  First, it is necessary to identify the relevant legislative power to temporarily close or discontinue the road, and then to do so in accordance with the power.  

These powers exist in a wide range of statutes, such as the RM Act in relation to roads generally, and  the Project Development and Construction Management Act 1994 and the Major Transport Projects Facilitation Act 2009 in relation to roads over land which is required for a particular project.

A number of formalities may be required before a road can be discontinued, for example:

• bringing the land within a declared project area;

• public notification and/or consultation;

• obtaining the consent of other parts of Government; and 

• amending a planning scheme.

Depending on the applicable legislative power and exemptions, discontinuation of a road can be achieved in as little as 28 days or take as long as 18 months.  

Once the road has been formally discontinued in accordance with the relevant power, the owner of the land can deal with that land as it pleases.  As a general rule, where roads on Crown land are discontinued, the underlying land normally returns to unreserved Crown land status.

Need some help?

Victoria's roads are governed by a complex legal framework.  Our Property Team has expertise in advising Government clients on a broad range of issues that arise when accessing and acquiring rights to land comprising a road.

For further advice, please contact: 

Anthony Leggiero

Managing Principal Solicitor

03 9947 1430

Margaret Marotti

Managing Principal Solicitor

03 9947 1410

Eloise Connelly

Principal Solicitor

03 9947 1493

Elizabeth Wortley

Senior Solicitor

03 9947 1433

What is in the Environment Protection Amendment Bill 2018?

The Environment Protection Amendment Bill 2018 (the Bill) is the second tranche of reforms following the Ministerial Advisory Committee's Final Report of the Independent Inquiry into the Environment Protection Authority (EPA)

The first major reform, the Environment Protection Act 2017 created a new statutory objective for the EPA and clarified its focus; to protect human health and the environment from the harmful impact of waste and pollution.

The Bill, if passed, will repeal and replace the current Environment Protection Act 1970 (the old Act), and create a prevention-focussed regulatory regime that gives the EPA a wider array sanctions and controls to manage high-risk activity.

The Bill has a forced commencement date of 1 December 2020, but is intended to take effect from 1 July 2020.

General environmental duty

The cornerstone of the Bill is a general environmental duty modelled after the duty on employers in the Occupational Health and Safety Act 2004.  It creates a positive obligation on duty-holders to proactively minimise the risk of harm to health and the environment from pollution and waste.  Both individuals and people conducting a business or undertaking (duty-holders) breach the duty if they fail to take steps that are reasonably practicable to minimise the risk of harm.

The type of actions required of duty-holders are laid out in the Bill and include:

• using and maintaining plant, equipment, processes and systems in a manner that minimises risks of harm to human health or the environment from pollution and waste; 
• using and maintaining adequate systems to ensure that if a risk of harm to human health or the environment from pollution or waste were to eventuate, its harmful effects would be minimised; and
• ensuring that all substances are handled, stored, used or transported in a manner that minimises risks of harm to human health or the environment from pollution and waste.

Those who breach the duty while conducting a business or an undertaking commit an indictable offence, and face a fine.

This duty will impact businesses, bodies and departments who engage in activities that pose a risk of harm to health or the environment from pollution and waste.

Permissions

There are three main tiers of permissions within the Bill: Licences (which are divided into operating, development and pilot project licences), permits and registrations.

In the old Act, licences and other types of approvals only applied to 'premises', whereas the Bill's permissions structure will apply to 'activities'.  The regulations will prescribe the types of activities that can be approved for each permission type.

The most easily granted permission, registrations, are meant for low to medium risk activity.  Permits are for less complex activities with a medium to high risk, and will include a standardised assessment process within the regulations.

The most onerous permission, in terms of application process and possible conditions is a licence.  It is designed for complex and high-risk activities and allows the EPA to customise conditions to suit the project.

Bodies that hold old permissions immediately prior to the Bill's commencement date will hold new permissions from the day the Bill commences.

Contaminated land

The Bill will create a duty to notify the EPA and an obligation to manage land contaminated by waste, a chemical substance or any other prescribed substance.  For the duty to apply, the contamination must be on or under the surface of the land, be present in a concentration above the background level and create a risk to human health or the environment.

If the land is contaminated, the Bill makes it clear that the person with management or control of the land is under the general duty to minimise risks of harm to human health and the environment from the contaminated land, which may include cleaning up the land.

The person with management or control must notify the EPA that the land is contaminated as soon as reasonably practicable.  Failure to do so results in a civil penalty.

Third party rights

The Bill will enable third parties to enforce breaches of the law and seek civil remedies where the EPA has not taken action.  The third party must be a person whose interests are affect by the contravention or non-compliance with the law, or anyone else with leave of the court where it is in the public interest.

If eligible, the third party has the same rights as the EPA to seek orders remedying or restraining breaches of the law, its regulations, or to licences and other permissions.

The right to enforce the law and seek remedies creates a new accountability mechanism on the EPA, where the regulator has failed or chose not to take action.

The Bill passed the Legislative Council on 9 August 2018.

For further information on the Bill and its implications, please contact:

Annette Jones
Principal Solicitor
8684 0444

Natasha Maugueret 

Managing Principal Solicitor 

8684 0223

This blog was produced with the assistance of Emma Buckley Lennox, Graduate Lawyer.

You can’t do that! Restricting use and sale of Government land

The Victorian Government Landholding Policy permits the sale or transfer of land to a government or community organisation for a public or community purpose where the terms of sale include a restriction on title reflecting that purpose which allows the State to control the future use and transfer of the land after disposal.[1]

The transfer of State owned or Crown land for public or community purposes will often be for nil consideration in recognition of the fact that the transferee will have obligations to make the land available for the intended purpose and to ensure that it is properly maintained for safe and enjoyable community use.

Once an agency has determined that it wishes to transfer land to an appropriate entity for public or community purposes, the next question is how best to ensure that the entity uses the land for the designated purposes and does not sell it to a third party to achieve a windfall gain or a profit.

Options for restricting use and sale of Government land

Restrictive covenants

As the Landholding Policy states, the restrictions are to be registered on the title to the land.  The traditional means of restricting use of land is via a restrictive covenant registered on the title of the land to be burdened by the covenant.  A restrictive covenant is an agreement between two landowners that one land owner will not do certain things on their land which could negatively affect the amenity of adjoining owners, for the benefit of the land held by the other owner. 

However, restrictive covenants are often not available to the State because they generally require that the State owns adjoining or reasonably contiguous land in freehold which will benefit from the restrictions set out in the covenant.  If these requirements are not met, the option will not be available.  The other challenge is that restrictive covenants can only include negative obligations (ie: an obligation not to do something on the land) and cannot oblige the burdened owner to spend money.

Statutory agreements

To address the shortcomings of restrictive covenants, various Acts provide for statutory agreements that can be entered into for public purposes and impose positive land use and development obligations on landowners.  Such agreements may be registered on the title to the land and can bind future transferees of the land, if transfer is permitted under the terms of the agreement.  Some of the more common statutory agreements are discussed below.

Section 173 of the Planning and Environment Act 1987 allows a responsible authority, commonly a local Council, to enter into an agreement with a land owner.  The agreement can provide for a restriction on the use or development of land, or any matter intended to achieve a planning objective in Victoria.  The responsible authority can enter into the agreement on anybody's behalf, and assumes responsibility for its enforcement once the agreement is recorded on the title to the land.

Where land is part of a designated project area, section 22 of the Project Development and Construction Management Act 1994 and section 49 of the Development Victoria Act 2003, allow the project authority under each Act to enter into an agreement with the transferee regarding use or development of the land.  In both cases, the agreements may be registered on title to the land as if they were an agreement under s 173 of the Planning and Environment Act 1987.  The key difference is that these agreements do not rely on the cooperation of the local Council to enforce the landowner's promises under the agreement and can instead by led and enforced by the project authority or facilitating agency.

Similarly, under s 69 of the Conservation, Forests and Lands Act 1987, the Secretary body corporate under that Act may enter into an agreement with a land owner relating to the management, use, development, preservation or conservation of land.  An agreement may also be entered into to give effect to the purposes of a law considered to be a relevant law.  The Act provides that any agreement will bind successors as long as the Secretary applies in writing to the Registrar of Titles to have it recorded on the title to the land.

A relatively recent example is the advent of the forestry and carbon management agreements as well as the carbon sequestration agreements.  These are provided for by a detailed scheme contained in the Climate Change Act 2017 (Vic).  The Act recognises proprietary rights in carbon sequestration and allows for the recording of various agreements between the landowner and the relevant person, which create binding obligations that run with the land and ensure the ongoing management of forestry, soil, and carbon sequestration rights.

As Property law experts within Government, the VGSO Property Team is well placed to assist you with land use arrangements and other property issues.  If you need further advice in relation to restricting the future use and transfer of State owned land, please contact:

Elizabeth Wortley
Senior Solicitor
9947 1433
elizabeth.wortley@vgso.vic.gov.au

Eloise Connelly 
Senior Solicitor
9947 1493
eloise.connelly@vgso.vic.gov.au


__________________

[1] Department of Treasury and Finance, Victorian Government Landholding Policy and Guidelines (September 2017) ii.

Functus Officio - myth or reality?

If you work as a government decision-maker, there may be times when you want to reconsider a decision you have made under an Act.  Perhaps there has been a change of policy or you are concerned there was a mistake in the first decision.  What are the lawful options available to you to reconsider that decision? 

Options for reconsideration of decisions

The options available will depend upon the legislative context in which the relevant decision has been made and the nature of the decision itself.  At a general level:

• Where a decision is affected by 'jurisdictional error', it can, in many cases, be treated as no decision at all and revoked and remade (following the High Court's decision in Minister for Immigration and Multicultural Affairs v Bhardwaj [1]).  Whether a decision is affected by jurisdictional error and may be treated in this way is a complex question on which we can provide advice.

• Where the relevant legislation sets out a formal process for internally reviewing decisions (see, for example: Building Act 1993 (Vic), Pt 11, Div 4, sub-div 2), a decision can be reconsidered in accordance with the prescribed process.

• Where a decision is not affected by jurisdictional error and no internal review process is prescribed, determining whether internal review is allowed (that is, without the decision being appealed to a court) can be a complex task, with which this article is principally concerned.

Indeed, this third scenario has recently been considered by the Full Court of the Federal Court in Minister for Indigenous Affairs v MJD Foundation Ltd (MJD).[2]

Background

Recent authorities on the source and scope of a decision-maker's power to undertake internal review must be understood in the context of the common law doctrine that a statutory power, once exercised, becomes spent and cannot be exercised again, without express statutory authorisation.  (This doctrine even has a fancy Latin name: functus officio).  The operation of this doctrine can prevent a decision-maker from exercising a statutory power in respect of more than one person or circumstance.

Legislation now seeks to avoid the inconvenient consequences of the operation of this doctrine, in provisions such as s 40 of the Interpretation of Legislation Act 1984 (Vic) (ILA) and s 33(1) of the Acts Interpretation Act 1901 (Cth) (AIA), which provide that statutory powers may be exercised 'from time to time'.  The operation of these provisions is considered further below.

The Full Court's decision in MJD

MJD concerned the Minister's power under s 64(4) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act) to direct that money be paid 'for the benefit of Aboriginals living in the Northern Territory'.  On the making of such a direction, the Act required an equivalent amount be debited from the Aboriginal Benefits Account. 

The Minister had directed under s 64(4) that a payment be made to a particular charity.  The charity then determined that it required additional funding, so sought to vary the size of the original grant.  Accordingly, the Minister gave a further direction that an additional sum be paid to the charity.  Before the additional amount was paid, there was a change of government and the incoming Minister decided to reverse the outgoing Minister's second decision (ie directing that the additional funds not be paid). 

The questions before the Full Court were whether s 33(1) of the AIA empowered the incoming Minister to revoke the outgoing Minister's decision and whether, assuming the provision operated as such, the Land Rights Act revealed a contrary intention sufficient to displace the operation of s 33(1).

Mortimer J, with whom Perry J agreed,[3] held that the Land Rights Act revealed such a contrary intention and that s 33(1) of the AIA had no application to the outgoing Minister's second decision.  This meant that the incoming Minister could not reverse the outgoing Minister's decision. 

Although that was a sufficient basis on which to determine the appeal, Mortimer J then made a number of observations about the scope of s 33(1).  Her Honour considered that s 33(1) did not extend to a general implication of a power to reverse or undo an exercise of power, whether by revocation of a decision made in exercise of the relevant power or otherwise.[4]  To the extent that such a power is to be found in legislation, the source of that power would be the legislation itself, rather than s 33(1) of the AIA.  The effect of s 33(1) is merely that, subject to any contrary intention, powers may be exercised and functions performed on more than one occasion, in relation to different individuals and circumstances.[5]

Victorian context

The leading Victorian authority on this issue is the Court of Appeal's, now 13-year-old, decision in Kabourakis v Medical Practitioners Board of Victoria (Kabourakis),[6] which was cited with approval in MJD.

Kabourakis concerned an application for judicial review of a decision made by the Medical Practitioners Board of Victoria to hold a second hearing on allegations that a doctor had engaged in unprofessional conduct, after an earlier hearing had found that the doctor had not engaged in such conduct.  The relevant professional supervision scheme provided for the Board to hold a preliminary investigation, which it did, as part of which it received a number of reports from medical professionals that were relevant to the specific allegations made against the doctor.  Following the preliminary investigation, a panel of the Board was convened to hold an informal hearing on the allegations.  After the panel found that the doctor had not engaged in unprofessional conduct, the Board realised that it had neglected to provide the panel with one of the reports that it received during its preliminary investigation. 

The primary judge held that the error, a factual one, was sufficient to enliven a power in the Board to revisit the earlier decision (on the basis of the High Court's decision in Bhardwaj).  On appeal, the Court of Appeal held that Bhardwaj did not apply (because the error was non-jurisdictional)[7] and that the Board otherwise lacked power to revisit a final and binding decision about the doctor's conduct.[8] 

Nettle JA, with whom Chernov JA agreed, pointed to a number of features of the statutory scheme as revealing an intention that findings and determinations of the Board, which do not involve jurisdictional error and which are not challenged in accordance with procedures prescribed by the Act or by judicial review, 'are effective for all purposes notwithstanding they may involve reviewable error'.  This construction also reflected 'the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand'.[9]

Having arrived at a construction of the legislation that did not permit the Board to revisit its earlier decision, Nettle JA also expressed doubt as to whether s 40 of the ILA would operate to imply a general power to add to, subtract from or reverse a previous exercise of the power.[10]

Determining whether internal review can be conducted

Ultimately, whether a government decision-maker is empowered to reconsider, alter or revoke an administrative decision will be a matter of statutory construction, which will require close consideration of the relevant legislative scheme.

Relevant factors may include:

• whether the decision in question is of a character usually understood as being irrevocable;

• whether the power in question must be exercised upon satisfaction of certain criteria; 

• whether the decision affects a person's rights;

• whether the decision triggers certain other obligations under the statutory scheme; and

• whether the statutory scheme provides for a decision concerning rights following on some process of formal determination.

Further information

The VGSO has extensive experience providing advice to government decision-makers on review of administrative decisions and can assist decision-makers to design internal review procedures and draft relevant policies where no such procedures or policies have been prescribed by legislation.  For advice in this respect, please contact Alison O'Brien, Assistant Victorian Government Solicitor, or Leveasque Peterson, Assistant Victorian Government Solicitor.

Alison O'Brien
Assistant Victorian Government Solicitor
8684 0277

Leveasque Peterson
Assistant Victorian Government Solicitor
8684 0462

This blog was written by Maya Narayan, Senior Solicitor, and Jack Maxwell, Solicitor.

___________________________

[1] (2002) 209 CLR 597.
[2] (2017) 250 FCR 31.
[3] MJD, [256] (Perry J).  Perram J, in dissent, held that s 33(1) could be invoked as a source of power to revoke the decision in question and that no contrary intention sufficient to oust the operation of that provision was evinced by the relevant legislative scheme: [62], [96].
[4] MJD, [100] (Mortimer J).
[5] MJD, [254] (Mortimer J).
[6] (2006) 25 VAR 449.
[7] Kabourakis, [4] (Warren CJ), [6] (Chernov JA), [43]-[46] (Nettle JA).
[8] Kabourakis, [6] (Chernov JA), [83] (Nettle JA).
[9] Kabourakis, [48] (Nettle JA).

[10] Kabourakis, [83] (Nettle JA).

The 2018-2019 Victorian Budget: Does your project involve sale, acquisition or leasing of land?

In response to the demands placed on existing State services and public infrastructure by strong population growth, the Victorian Budget announced allocation of funding for several substantial infrastructure projects.  Funded projects have been identified in diverse fields, such as: road and rail; building and expanding hospitals; purchasing land for new schools; and delivering new or upgraded facilities for emergency services staff and volunteers.  In addition, the Federal budget announced funding for the State's Airport Rail Link and North East Link freeway infrastructure projects.  In order to deliver these infrastructure projects, sponsoring agencies will need to acquire, sell, lease and access land, and in doing so, navigate legislative and policy frameworks regulating Government dealings with land.

The Victorian Government Land Transactions Policy and Guidelines April 2016 establishes strict requirements for Victorian Government agencies when dealing with the sale, acquisition and leasing of land.  Key features of the policy include that in the absence of an exemption, agencies:

• must obtain the Victorian Government Land Monitor's approval for any sale or purchase of an interest in land with a value of $750,000 or more before an offer is made;
• must not grant an interest in land at a price less than the current market rent or sale value, as determined by the Valuer-General Victoria (VGV);
• must not purchase an interest in land at a price which is greater than the current market rent or sale value, as determined by the VGV;
• must not sell any land without following a public process such as an auction, tender or expression of interest campaign;
• prior to offering land for sale by a public process, have in place the most appropriate zoning which enables the land to be used or developed in accordance with its highest and best use; 
• must not grant a lease of land which contains an option to purchase; and
• must have regard to the existence of native title rights and interests in the land.

Where a lease over Crown land is proposed, an agency must consider: whether the land is reserved for a public purpose; who the appointed land manager is; the criteria for approving the permitted use and agreement terms as set out in legislation; and the maximum tenure lengths permissible.  These are typically set at 21 years for leases and 10 years for licences (each including options).  This analysis will help to identify the Government entity with authority to grant the lease and any salient legislative restrictions such as maximum terms and limitations on permitted uses.  The Leasing Policy for Crown Land in Victoria 2010 administered by DELWP ensures a consistent approach to leasing of Crown land by requiring:

• use of DELWP's standard form leasing documentation; and
• all lease proposals by a land manager other than the Minister for Energy Environment and Climate Change to have the Approval in Principle of the Minister and subsequent terms and conditions approval.

The VGSO Property and Native Title Teams have extensive experience in Government property transactions and are well placed to assist agencies in navigating compliance with legislation and policies applicable to sale, acquisition and leasing of land.

Anthony Leggiero
Managing Principal Solicitor
9947 1430

Mary Scalzo
Managing Principal Solicitor
9947 1419

The 2018-2019 Victorian Budget: Does your project involve Information Sharing?

The Victorian Budget 2018-19 included allocation of funds to a wide range of areas where government needs to balance privacy concerns with the benefits of sharing information.  Common areas where this arise are in family violence and in the health, disability, justice and education sectors.

A key announcement in the Budget was the allocation of $13.4 million (and $30 million over the forward estimates) to support a new whole of Government initiative known as the 'Child Information Sharing Reforms'.  This initiative is underpinned by the Children Legislation Amendment (Information Sharing) Act 2018 which came into force on 10 April 2018.  The reforms seek to protect vulnerable children by simplifying and improving information sharing arrangements between specified government agencies and service providers.

Knowing when and how to lawfully disclose information in different contexts is vital.  However, an overly legalistic or unbalanced approach can lead to an unwillingness to share information, which may result in negative outcomes for Victorians, particularly for vulnerable families experiencing family violence who rely on a number of integrated support services, built on effective information sharing. 

A key objective of the Child Information Sharing Reforms is to promote child wellbeing and safety by enabling information sharing.  Budget funding will target training for workers to understand when it is appropriate to share information, to improve early risk identification and intervention and increase collaboration for the wellbeing and safety of children. 

VGSO has extensive experience in advising on information sharing in a wide range of different contexts.  Please call one of our experts in this area if you require assistance in understanding how to discharge your obligations when sharing information: 

Julie Freeman

Assistant Victorian Government Solicitor 

9947 1404

Rebecca Radford

Managing Principal Solicitor 

9947 1403

Easement - Do we have one?

The State and its agencies own a significant amount of freehold land across Victoria, in addition to the extensive Crown Lands Estate.  The creation of easements to either benefit or encumber that freehold land is often necessary to realise objectives to develop either State owned land or privately owned surrounding land and ensure the efficient provision of necessary infrastructure and facilities.  For example, the State may require a utility service provider to install pipes, fittings, and drains under State owned land to provide a water supply to a proposed new school building.  Alternatively, a developer of land that adjoins State owned land may require a right to connect to drainage or sewerage pipes under the State owned land before the local Council will grant them a permit to construct units on their land and certify the necessary plan of subdivision.

Do we need an easement?

Before deciding on creating an easement, it is important for the department or agency to step back and ask a few questions.  For example, you should consider:

1. Will a right to use the land in common with others suffice or is there a need for exclusive possession?
2. Is the right to use the land to be enjoyed by whomever is the owner of the benefiting land at any given point in time or is the use right intended to be personal to the State or an individual
3. Are the following (4) essential characteristics of an easement present?[1]

• There must be a dominant and a servient tenement - The land that benefits from the easement is the dominant tenement and the land subjected to the easement is the servient tenement.
• The right must accommodate the dominant tenement - The right claimed as an easement must be reasonably necessary for the better enjoyment of the dominant tenement and the two parcels of land affected by the easement arrangement must be contiguous.
• Both tenements must be owned or occupied by different persons.
• The right must be of a kind capable of forming the subject matter of a grant - The right must be sufficiently precise and certain and not confer a right to exclusive possession.

The answers to these questions will assist with determining whether an easement is the appropriate form of tenure.

Easements create non-possessory, proprietary interests in land.  An easement will be the appropriate form of tenure if the (3) questions above are answered in the affirmative.
If exclusive possession is needed, a lease will be the appropriate instrument, not an easement.  If a mere personal right to use land for a defined time period is required, a contractual licence will be needed rather than an easement.

How should we create the easement?

Statute

A certified plan can be lodged at Land Use Victoria for the purposes of creating an easement, upon the Registrar of Titles' registration of that plan.  A planning permit will normally need to be obtained under the relevant planning scheme and lodged with the certified plan, registration application, the title to the burdened land and other necessary documentation [2].
 
In the context of a subdivision, easements necessary for the reasonable enjoyment of the property may be created by being shown on the certified and registered plan of subdivision.[3] These include easements of way, drainage, party wall, supply of water, gas, electricity, sewerage, telephone and other services either through, over or under lands.

The scope of the rights granted to the beneficiaries of these easements is determined by the common law.  Where more bespoke or specific rights are required, an express grant will be needed as outlined below.

Express Grant

Creation of an easement by express grant can be done by deed or using Land Use Victoria's approved form.

While existing equitable easements are protected by law in Victoria in the sale scenario, formal registration of an easement is nevertheless recommended in the interests of clarity and certainty.  Registration may also save an easement which might otherwise be regarded as abandoned through extended non use.

Doctrine of the lost modern grant

The common law doctrine of lost modern grant will apply to create easements over land in Victoria where there is proof that a right in the nature of an easement has been used openly and continuously for at least 20 years, without objection by the owner of the burdened land.

The doctrine of the lost modern grant does not operate over Crown land.

Wrongful interference with or obstruction of an easement constitutes the tort of nuisance and, among other things, gives the dominant owner a right to obtain damages and/or an injunction.

As Property law experts within Government, the VGSO Property Team is well placed to assist you with land use arrangements and other property issues.  If you need further advice in relation to easements, please contact:

Jennifer McLean
Senior Solicitor
9947 1429
jennifer.mclean@vgso.vic.gov.au

Elizabeth Wortley
Senior Solicitor
9947 1433
elizabeth.wortley@vgso.vic.gov.au

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[1] These (4) characteristics are not a requirement for statutory easements in gross conferred upon various government or other bodies that provide essential public services, such as gas, power and water supplies.

[2] Subdivision Act 1988 ss 23 and 24

[3] Transfer of Land Act 1958 s98

Court of Appeal considers parallel regulation under the Water Act 1989 and the Planning and Environment Act 1987

A recent decision of the Victorian Supreme Court of Appeal has provided authority on the interrelationship between parallel frameworks under the Water Act 1989 (Water Act) and the Planning and Environment Act 1987 (PE Act). In Stanley Rural Community Inc v Stanley Pastoral Pty Ltd, it was ultimately found that licences conferred under the Water Act cannot be limited by the PE Act without an express provision.

What is this case about? 

In 2013, Stanley Pastoral Pty Ltd purchased land which included a licence under s 51 of the Water Act to ‘take and use’ water on its property.  Stanley Pastoral applied to Goulburn Murray Water to split the entitlement to extract 19ML from groundwater and 31ML from surface water.

After the entitlement split was granted, Stanley Pastoral applied to Indigo Shire Council (Council) for a planning permit for the use and development of the land for a 'utility installation', which is defined as land used to collect, treat, transmit, store or distribute water.  Specifically, the permit application was for a change of use from an existing bore to the development of a water transfer station to include a shed, water silos, and associated equipment.

This case commenced after Council refused to grant the permit on the basis that the groundwater extraction would adversely affect the aquifer, diminish the potential for the land for agriculture and horticulture, and prejudice the land served by nearby bores.

VCAT grants permit

At first instance, VCAT granted the permit, finding that the means by which groundwater is extracted was not subject to controls under the PE Act or the planning scheme.  VCAT found that the Water Act provides the necessary controls for the flow, use and management of water (including groundwater).

Objectors appeal the decision

Objectors from Stanley Rural Community Inc appealed VCAT's decision to the Supreme Court.  McDonald J upheld the grant of the permit but for different reasons.

Intention to limit a conferred right should be expressly demonstrated

His Honour centred on the use of term 'expressly' in s 8(6) of the Water Act, which deals with continuation of private rights to water:

A right conferred by this section is limited only to the extent to which an intention to limit it is expressly (and not merely impliedly) provided in…any other Act or in any permission or authority granted under any other Act.

Stanley Pastoral's right was conferred under s 8(4)(a), which grants a person the right to use water taken or received by that person in accordance with a licence or other authority issued to that person under the Water Act.

His Honour found that because there were no words in the PE Act or in the planning scheme expressly qualifying the rights of a water licence under the Water Act, then rights created under the Water Act to take and use groundwater cannot be the subject of objection or control pursuant to a planning scheme.

Final outcome

In a decision dated 20 December 2017, the Court of Appeal refused leave to appeal. 

The Court found that powers to regulate or prohibit use or development of any land under s 6(2) of the PE Act do not expressly demonstrate an intention to limit the rights conferred under s 8 of the Water Act.  Therefore, the PE Act did not limit the right under s 8(4)(a) of the Water Act.  Their Honours further held that the words in parentheses 'and not merely impliedly' within s 8(6) of the Water Act make this clear.

The Court also found that the right conferred by s 8(4)(a) of the Water Act to use water 'taken or received…in accordance with a licence…under this Act' is:

one upon which the permit applicant can rely in respect of water taken and used under the s 51 take and use licence, by virtue of s 8(6) as 'limited only to the extent to which an intention to limit is expressly (and not merely implied) provided in…' statutory instruments of the various types specified.

Separately, their Honours overruled VCAT's finding at first instance that the planning scheme might have made express provision to limit water rights.  The Court cast doubt on the prospect that a planning scheme meets the description found in s 8(6) of the Water Act of 'any permission or authority granted under any other Act'.

Finally, the Court rejected the applicant's argument that the 'real and substantial purpose' of the proposed land use was an innominate 'groundwater extraction' use.  Instead, their Honours confirmed VCAT's finding that the 'real and substantial purpose' of the proposed land use fit within the broad definition of 'utility installation' in the planning scheme - therefore requiring a planning permit for 'utility installation'.

Key take-away

The case demonstrates that licences conferred under the Water Act cannot be limited by the PE Act as it does not currently make express provision in relation to the extraction of groundwater.

Further information

VGSO regularly advises in planning, water and related areas including development approvals, planning scheme amendments, drainage and sewerage projects and land management. For a discussion of the services VGSO can provide in this area, please contact Annette Jones, Principal Solicitor or Natasha Maugueret, Managing Principal Solicitor.

Annette Jones
Principal Solicitor
03 8684 0431

Natasha Maugueret
Managing Principal Solicitor
03 8684 0223