Monday, 14 May 2018

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

Tuesday, 8 May 2018

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: 


Assistant Victorian Government Solicitor 
9947 1404

Managing Principal Solicitor 
9947 1403

Friday, 13 April 2018

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



[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

Monday, 22 January 2018

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