Victorian Consolidated Legislation

Subdivision Act 1988 - SECT 36

Power of owner to acquire or remove easements

36. Power of owner to acquire or remove easements



(1) If-

   (a)  when considering a proposed amendment to a planning scheme or an
        application for a permit or to amend a permit; or

   (b)  in implementing an amendment to a planning scheme; or

   (c)  in a condition in a permit-

the Council or a referral authority states in writing that it considers that
the economical and efficient subdivision or consolidation (whether existing or
proposed) or servicing of, or access to, land covered by the amendment,
proposed amendment, application or permit requires the owner of land to-

   (d)  remove a right of way over the owner's land; or

   (e)  acquire or remove an easement over-

   (i)  other land in the subdivision or consolidation; or

   (ii) other land in the vicinity- and that the removal or acquisition will
        not result in an unreasonable loss of amenity in the area affected by
        the removal or acquisition, the owner may apply to the Victorian Civil
        and Administrative Tribunal for leave to remove the right of way or
        acquire or remove the easement compulsorily15.

(1AA) In conferring powers on a Council or referral authority under subsection
(1) it is the intention of Parliament that, in considering a matter for the
purposes of that subsection, the Council or referral authority should make an
assessment of the engineering and amenity aspects of the matter, is not bound
to notify anyone affected or to hear objections, but objections to that
assessment may be raised before the Tribunal16.

(1A) The Tribunal may give leave subject to any conditions it thinks fit.





(2) If leave is given-

   (a)  in accordance with any conditions to which the leave is subject, the
        owner may compulsorily acquire the easement and17-



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   (ii) the Land Acquisition and Compensation Act 1986 applies to the
        acquirement of the easement, and for that purpose this section is the
        special Act and the owner is the Authority; or

   (b)  in accordance with any conditions to which leave is subject, the owner
        may submit for certification and lodge for registration a plan to
        remove the easement and-

   (i)  unless the Tribunal otherwise directs, the consent of any person
        having an interest in land benefited by the easement is not required
        for its removal, and section 22(1)(c)(d) and (da) does not apply to
        the removal of the easement; and

   (ii) Parts 3, 4, 6, 7, 10 and 11 of the
        Land Acquisition and Compensation Act 1986 apply to claims for
        compensation on the removal of the easement by persons having an
        interest in land benefited by the easement as if the owner who removed
        the easement had acquired by compulsory process an interest in land
        benefited by the easement, and for that purpose this section is the
        special Act and that owner is the Authority.

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