Power of owner to acquire or remove easements
36 Power of owner to acquire or remove easements
S. 36(1) substituted by No. 48/1991 s. 32(1), amended by Nos 34/1994 s. 6(1), 52/1998 s. 311(Sch. 1 item 86.2(a)).
If—
when considering a proposed amendment to a planning scheme or an application for a permit or to amend a permit; or
in implementing an amendment to a planning scheme; or
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—
remove a right of way over the owner's land; or
acquire or remove an easement over—
other land in the subdivision or consolidation; or
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 compulsorily.
S. 36(1AA) inserted by No. 48/1991 s. 32(1), amended by No. 34/1994 s. 6(2).
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 Tribunal.
S. 36(1A) inserted by No. 47/1989 s. 4(4)(a), amended by No. 52/1998 s. 311(Sch. 1 item 86.2(b)).
The Tribunal may give leave subject to any conditions it thinks fit.
S. 36(2) substituted by No. 47/1989 s. 4(4)(b).
If leave is given—
in accordance with any conditions to which the leave is subject, the owner may compulsorily acquire the easement and—
S. 36(2)(a)(i) repealed by No. 57/1993 s. 15(1).
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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
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—
S. 36(2)(b)(i) amended by No. 48/1991 s. 32(2).
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
S. 36(2)(b)(ii) amended by No. 48/1991 s. 32(3).
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.
S. 36(3) repealed by No. 48/1991 s. 32(4).
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S. 37 substituted by No. 47/1989 s. 8(2).
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