RESPONDENTS: Marie Chantel Anne Huguette Sullivan,

Lot 3 on Plan of Subdivision No. 41738W being the land in Certificate of Title Volume 10415 Folio 092.

1. The Respondents Marie Chantel Anne Hugiette Sullivan, Elio Celotto and Novamero Pty Ltd are ordered to comply with condition 5 of Planning Permit for Subdivision No. 98/3400 issued by the Responsible Authority on the 18 March 1998 by each entering an agreement under s. 173 of the Planning and Environment Act 1987 with the Responsible Authority to the effect that the development by construction of a dwelling of the land known as 5 Harold Street, Sandringham and being Lot 3 on Plan of Subdivision No. 41738W and the land in Certificate of Title Volume 10415 Folio 092 must be of a single storey in accordance with the endorsed plans forming part of Planning Permit 97/2656 issued by the Responsible Authority on the 12 December 1997 within six (6) weeks of the date of this order.

2. This enforcement order application is otherwise adjourned to a date to be fixed.

3. The costs of the Responsible Authority and of Rosalie Margaret Hall in relation to these proceedings are reserved.

Mr Andrew Sherman, solicitor of the firm of Russell Kennedy, solicitors, appeared for the Responsible Authority. He presented written and oral submissions and called three witnesses. They were Rosalie Margaret Hall, artist and teacher, David Dickins, structural engineer of Fisher Stewart Engineers, and Theo Alexopoulos, building surveyor. Each witness gave oral evidence and presented, in the cases of Mrs Hall and Mr Alexopoulos, a written statement of evidence and in the case of Mr Dickins a written report.

Mr G Peake, barrister, appeared on the instructions of the firm of Galbally & O'Bryan, solicitors for the Respondent Marie Chantel Anne Huguette Sullivan. He presented written and oral submissions and called his client, who is a part-time corporate management assistant, as a witness. She gave oral evidence and a written witness statement was tendered.

Mr A J Laird, barrister, appeared on the instructions of Andolfallo & Associates, solicitors, for the Respondents Elio Celotto, Novamero Pty Ltd and Valedile Pty Ltd except that Mr Ivan Andolfallo, solicitor, of the said firm, appeared for those parties on the 9 August 1999. Mr Laird presented written and oral submissions but called no witnesses.

Mr Ian Pitt, solicitor of the firm of Best Hooper, solicitors, appeared, at times with Mr Dominic Scally, solicitor of the same firm, for Mrs R M Hall. He presented written and oral submissions and called his client and Mr John Raymond Keith Edwards, land surveyor and town planner.

Various plans, photographs and other documents were tendered. The evidence and submissions in documentary form have been retained on the Tribunal's file.

Application under s.114 of the Planning and Environment Act 1987 (PE Act) for an enforcement order.

Failure to comply with condition 5 of Planning Permit 98/3400 issued by the Responsible Authority on the 18 March 1998 which permit granted permission for a subdivision whereby the land was created as a separate allotment and which condition required the permit applicant to enter an agreement under s. 173 of the Planning and Environment Act 1987 which agreement was to require that the development of the land must accord with the approved plans forming part of Planning Permit No. 97/2656 by failing and refusing to enter such an agreement and by commencing and completing the subdivision without having done so and by commencing construction on the land contrary to such plans.

At the time of the hearing, Residential "C" Zone under the Bayside Planning Scheme.

GROUNDS OF OBJECTION TO ENFORCEMENT ORDER

"(a) The development was constructed in accordance with Planning Permit 98/3400.

(b) The land was subdivided and comprises a lot of not more than 300 square metres on which no permit is required for alterations or additions to an existing dwelling.

(c) The owners are not now required to comply with Condition 5 as a Statement of Compliance has been issued and the Plan of Subdivision registered.

(d) The Responsible Authority is estopped from alleging there is a breach of the permit.

(e) There is no breach of the permit.

(f) The Tribunal does not have the power to make the orders sought."

At the commencement of the hearing an application was made for an amendment of the enforcement order application into the form of application submitted by Russell Kenndey, solicitors under cover of their letter dated 5 August 1999. This amendment was granted and the hearing proceeded on the basis of the application so amended. The application in that form appears on the file with a notation in red signed by me which reads "Substituted for original Aptn a commencement of hearing on 9/8/99".

1. This case concerns a house on land known as 5 Harold Street, Sandringham. 5 Harold Street is a rectangle of land on the north side of that street. It has a frontage of 13.95m and a depth of 23.16m. The area is 323m2. It is located 36.58m west of the intersection of Harold Street with Norwood Street. Harold Street runs approximately east to west whilst Norwood Street runs south to north. 5 Harold Street is Lot 3 on Plan of Subdivision No. 417308W being the land in Certificate of Title Volume 10415 Folio 092.

2. Prior to its creation as a separate allotment by that subdivision, the land was part of land known as 22-24 Norwood Street, Sandringham. This parent piece of land was situated on the north-western corner of the intersection of Norwood Street with Harold Street. It had a frontage of 23.16m to the western side of Norwood Street and a depth of 36.58m along its side abuttal to the northern side of Harold Street. The total area of 22-24 Norwood Street was 849m2. It had been Lot 9 on Plan of Subdivision No. 2341 and was the land in Certificate of Title Volume 4577 Folio 391.

3. The story starts, so far as relevant for present purposes, with 22-24 Norwood Street being purchased by the Respondents Sullivan, Celotto and Novamero Pty Ltd on the 15 March 1997. The endorsement on the back of the Certificate of Title, registered on the 20 May 1997, shows that these three became registered as proprietors as tenants in common in equal shares. The endorsement gives a common address for them being 29 Patterson Street, Middle Park.

4. These joint proprietors were not strangers or at arms length. At least the first two were not. Ms Sullivan gave evidence that she had previously been married but that she divorced and was living in a de facto relationship with Mr Celotto. That relationship continues. Mr Celotto is a builder with some experience in land development.

5. A company extract shows that Novamero Pty Ltd is a company of which Dominic Di Iorio is director and secretary. I note, by the way, that some of the documents tendered give his first name being spelt Domenick and his surname as Di lorio. His name was often pronounced, in the course of the hearing, as if the first letter of the second word of his surname was "L" rather than "I". A lower case "L" appears, in many forms of type, as similar to an upper case "I". In any event, he appears as one of two directors of the company, the other being Anna Marie Di Iorio who has the same address as Dominic.

6. Mr Pitt often referred to the three Respondent co-owners collectively as the joint venturers.

The First Planning Permit (No. 97/2656)

7. At the time they acquired 22-24 Norwood Street a substantial two storeyed house stood on the land. It still stands there, although it has now been divided into two dwellings. It is set towards the Norwood Street frontage. That building did not extend onto the western portion of the land that has now become the separate allotment known as 5 Harold Street. That was an open area forming part of the grounds. It nevertheless had potential for development as the site of a new house to face Harold Street. The joint venturers set about realising that potential.

8. The construction of a second house on the then existing Lot 9 would be a development and use then recognised under the Planning Scheme as a "dual occupancy". A dual occupancy means two dwellings on a single allotment of land. It required a planning permit. The venturers set about seeking such permission for such development and use.

9. As a matter of fact the proposal brought forward was a little more complicated than a simple dual occupancy. With some minor modifications the existing two storey house could be converted into two dwellings within one building. The proposal was for this to be done, and also for a new attached two storey house to be erected on the vacant western portion of the land. A planning permit application was made seeking permission for this project. Permit application 97/2656 was lodged with the Responsible Authority for that purpose.

10. Apparently the Responsible Authority gave or required notice to be given of this permit application because there is evidence that P & V Edwards objected to it. In due course the Responsible Authority determined to refuse the application. It did so on five grounds. The Applicant appealed to the Administrative Appeals Tribunal (AAT) against that refusal. The role of the AAT as the planning tribunal in Victoria has now been taken over by this tribunal. The appeal, 1997/52508, came on for hearing before a member of that Tribunal (other than myself) on the 30 October 1997. A written determination with reasons was subsequently given in a document dated 12 December 1997.

11. The parties specified in the heading of the determination document are Domenick Di Lorio, Appellant/Applicant; City of Bayside, Responsible Authority and P & V Edwards, Objectors.

12. I am satisfied, indeed I think it is obvious, that the Appellant/Applicant is the same person who is the director and secretary of Novamero Pty Ltd and that he acted here as agent for that company and for its co-owners Mr Celotto and Ms Sullivan. He was represented at the appeal hearing by Mr Tom Paciocco, architect, whilst the Responsible Authority was represented by Ms Rebecca Stockfeld, town planner. A letter from the objector, Mr Peter Edwards, was before the Tribunal. It explained that he was interstate and summarised his objection.

13. The proposal for which planning permission was sought is specified in the determination in the following terms:-

"Additions and alterations to the existing attached double storey units and development of a third double storey attached unit and the use of the land for multi dwellings ."

14. It is quite clear that the new, third dwelling, was proposed to be double storeyed. It is equally clear that the Tribunal was not prepared to countenance any such thing. The relevant portion of the reasons, commencing on page 6 of the determination document, reads as follows:-

"The appeal site is located at the north-west corner of Norwood Street and Harold Road approximately 40m from Beach Road and contains a double storey pair of attached units. It slopes slightly to the north-west and is located in a residential area offering a mix of housing styles. The objectors (sic) property abutting in Norwood Street to the north is a recently renovated and enlarged two-storey dwelling with rear outdoor living areas at both ground and first floor levels. The abutting dwelling to the west in Harold Street is a single storey dwelling setback approximately 21m from the street.

The inspection was helpful in understanding the amenity loss that would be occurring to the Objectors, but more particularly the building bulk or mass from Howard Street was not in keeping with the neighbourhood character as pointed out on the site inspection.

It was indicated to the Applicant's representative, Mr Paciocco and M/s Stockfield from the Responsible Authority's office on site that the proposal showing on the amended plans was unacceptable because of building bulk fronting Harold Street and he was given the opportunity to submit an amended plan showing the third dwelling as a single storey building which would fit the neighbourhood character of the area.

A further amended plan was submitted to the Responsible Authority on the 27 November showing the third dwelling fronting Harold Street as a single storey attached dwelling with a flat roof and rendered external finish. The Responsible Authority submitted a copy to the Objectors and offered the following comment themselves (sic) in the extract from their letter of the 27 November:-

'As requested at the site inspection, Council offers the following comments in respect of the proposed Unit 3:

•

The flat roof of the unit is inconsistent with the immediate neighbourhood, which comprises single and double storey dwellings with pitched rooves (sic).

•

The proposed flat roof of Unit 3 is inconsistent with the existing Units 1 and 2 on site, which have pitched rooves, and will not sit comfortably in the streetscape.

•

The proposed on-site car parking and open space areas are inappropriate.

It is submitted that the amended plans are inappropriate in the context of the streetscape and neighbourhood character and it is respectfully requested that the appeal be disallowed.'

The Objectors have replied advising of no objection to the current amended proposal.

The Tribunal has again inspected the area to assess the amended proposal and although satisfied that the single storey element of dwelling 3 is satisfactory, agrees with the Responsible Authority when considering the overall streetscape and neighbourhood character.

_It is intended to allow the appeal with conditions as per the draft set circulated at the inspection by M/s Stockfeld but with a modified Condition 1 require dwelling 3 to be single storey and set away from dwellings 1 and 2 by 1 metre, and to have a hipped roof and external finish to be approved by the Responsible Authority who shall consider the Objector's (_sic) concerns when approving the height and shape of the roofline."

15. The Tribunal then went on to say that, for the reasons given, the appeal would be allowed and a permit granted for a three dwelling development at 22-24 Norwood Street subject to 13 specified conditions. The first of those conditions, with emphasis added by me, reads as follows:-

"1. The layout shall be as per amended plans dated 19 November 1997 with dwelling 3 altered to show:-

(a)

1 metre space between the structure of dwellings 1 and 2 and the single storey dwelling 3 and garage.

(b)

a hipped tiled roof.

(c)

a brick external finish or similar.

These shall be to the approval of the Responsible Authority and subsequently become the endorsed plans."

16. Planning Permit 97/2656 was subsequently issued in accordance with the Tribunal's determination and direction on the 12 December 1997. It allows a three dwelling development on 22-24 Norwood Street, Sandringham subject to conditions, including condition 1 in the terms set out above.

17. I think it is perfectly obvious that the Tribunal disapproved of the proposal originally brought before it on account of planning objections to the proposed two storey construction of Unit 3, that is to say, the proposed new construction on the land that has become 5 Harold Street. It also disapproved of Unit 3, even if of single storey construction, being attached to the existing building or having a flat roof.

18. The reasons for that attitude were not limited to the adverse effects that such a proposal would have on the neighbouring objectors, but "more particularly" related to the effect on the Harold Street streetscape in terms of building bulk and mass and to such a proposal not being in accordance with the neighbourhood character. It is also obvious that the Tribunal would have refused to grant a permit on that account if it had not been prevailed upon to allow the Applicant an opportunity to submit amended plans:-

"Showing the third dwelling as a single storey building which would fit the neighbourhood character of the area."

Neither in its reasons, nor in the condition 1 that it imposed, did the Tribunal countenance the possibility that some other form of two storey dwelling could be designed that would acceptable, from a planning point of view, for this part of the site. On the contrary, the determination and the reasons clearly insist that only a single storey house, and that a detached one, would be approved.

19. It goes without saying that this planning permission was given in the expectation that, if acted upon at all, it would result in a building of a single storey and that it would remain so. The Tribunal did not go to all that trouble on the basis that the third dwelling could be built as a single storeyed to satisfy the permit and that it would then be immediately converted into a double storeyed dwelling. I dare say that the member constituting the Tribunal thought that such action would be so obviously, if implicitly, in contravention of the permit as not to require explicit prohibition in a permit condition.

Building Act Permit

20. Having obtained Permit 97/2656 the joint venturers proceeded to act upon it. To this end they required a building permit under the Building Act 1993 and the Building Regulations 1994. Such a building approval includes a permit document and the approval of building construction plans and specifications. Such plans, etc. require construction details so that an assessment can be made as to whether the building, if constructed in accordance with such plans and specifications, will be safe and sound during and after construction. The building legislation also provides for inspections of the construction work at various stages to ensure compliance with the approved plans and specifications and to ensure that the work is in fact carried out in a proper, safe and workman like fashion; again to ensure that the completed building will be safe and sound. There are various mandatory inspections of this sort, for example in relation to foundations and steel reinforcement for footings, framework and to certify completion to the point of being fit for occupation.

21. These duties of assessing and approving applications and plans, and of carrying out the various inspections, were traditionally the responsibility of publicly employed officers of local municipalities. Legislative changes in recent years have created the situation where private building surveyors, in private business on their own account, can carry out all these duties provided they are certified as having the necessary knowledge and experience, and are registered for the purpose. Such registration is not with or given by the Council, but is with a central State Government authority. Such private building surveyors obtain remuneration for these various pieces of work in the form of fees paid to them. They compete with Council officers (building inspectors and surveyors) on the one hand, and with each other, on the other. Thus they have a private financial interest in building up and holding the good will of those in a position to give them such work, and perhaps in not disobliging them. Developers and professional builders are, of course, continuing sources of such work.

22. Builders and developers, for their part, are confronted with a choice as to whether they will approach Council officers or private building surveyors, and if the latter, then which of the many who offer their services in this way. In this case the joint venturers, through one of them acting as their agent (namely Mr Celotto), approached a private building surveyor named Theo Alexopoulos of Metro Building Pty Ltd. It appears that his registered number is BS 1574. It is quite obvious, from all the circumstances, that Mr Celotto acted as agent for the other joint venturers in this respect, and this is confirmed by the evidence given by Ms Sullivan.

Evidence of the Building Surveyor

23. Mr Alexopoulos gave evidence and was cross-examined. I am afraid I found him to be an unreliable witness. Prior to the commencement of the hearing of this matter a directions hearing had been conducted on the 18 June 1999. Directions were given and confirmed in writing in a document issued by the Tribunal on the 24 June 1999. Amongst other things, each party was ordered to provide to each other party, and to file with the Tribunal, not less than 10 clear working days before the commencement of the hearing fixed for the 9 August 1999, a report of each expert witness and a written witness statement of each non-expert witness intended to be called. A statement of evidence of Mr Alexopoulos was provided pursuant to that direction. It is set out like a court document such as an affidavit (although it purports to be a statement rather than an affidavit), with a heading as for documents in this case. It is signed by Mr Alexopoulos.

24. He adopted this document in his evidence, but before doing so, he made several minor but specific amendments to points that he said were inaccurate. In fact this statement, as amended, has proved to be a partial document. Firstly, it is partial in the sense that it leaves out many things necessary to a full and truthful account of Mr Alexopoulos' part in and knowledge of matters relevant to the case. Secondly it is only partially truthful in that some of the things said in it are untrue. Thirdly it is partial in the sense of being biased and unfair. Read by itself it gives an account favourable to the Respondents which account is, by its omissions and untruths was unfair and biased.

25. The same can fairly be said of his oral evidence generally.

26. I will mention here one particular discrepancy between the written statement and the oral evidence. Its significance becomes clearer as the history of this matter unfolds. The first sentence of paragraph 3 of the statement of evidence reads:-

"On or about 10th December, 1998 I was informed by Elio Celotto that the owner of 5 Harold Street, Sandringham wanted to add a second storey to the existing dwelling."

27. That sentence conveys the understanding, and is intended to convey the understanding, that this was the first that Mr Alexopoulos knew of the Respondents' plans to circumvent the decision and reasons of the Tribunal that only a single storeyed dwelling should be allowed on 5 Harold Street, and to defeat the attempts of the Responsible Authority to see to it that such determination by the Tribunal was implemented and maintained. In his evidence on the 11 August 1999 Mr Alexopoulos was asked:-

"When were you aware of the desire of Mr Celotto or his company or Ms Sullivan to build an upper storey?"

"The idea was discussed prior to when the building permit for the one storey house was issued. The plans, approved by me, were for a one storey dwelling."

That was long before 10 December 1998 referred to in paragraph 26 above. It demonstrates the deceptiveness of the passage from two statements quoted in that paragraph.

28. I mention this particular matter somewhat out of its correct chronological order because it satisfies me, apart from being one of many indicators of the unreliability of Mr Alexopoulos' evidence, that he was aware, from the beginning of his involvement in the case, that it was the Respondents' intention from the beginning of construction to achieve a two storey house on 5 Harold Street.

29. In Mr Alexopoulos' oral evidence he was frequently evasive, and I am quite satisfied that he was deliberately evasive. He frequently sought to evade questions by giving answers to other questions not asked, or by giving unresponsive answers, and his responses frequently had to be carefully followed up to obtain answers to what was being asked of him. The ultimate answers frequently demonstrated that he knew the true situation all along but was trying to avoid disclosing it. Apart from frequently seeking to evade answering questions, he also gave untruthful answers.

30. In his capacity as a building surveyor and a "private certifier" he is obliged to keep records, issue official permits and certificates, and supply certain information and documents to the municipal council. In issuing permits and certificates he is obliged to sign and date them. The dates and particulars in the documents are supposed to be true. In many cases there should be only one version of such documents. It was revealed that Mr Alexopoulos changes dates and particulars and issues documents over his signature which purport to be true as to dates and particulars, but which cannot be true, either because of chronological impossibility and/or because of the issue of other versions of the same document with different dates and different particulars. The building permit he issued in relation to the construction of a one storey house on 5 Harold Street, being permit 981353 (exhibit S14) was issued, on Wednesday 17 June 1998. The endorsement of the approved plans in relation to that permit also bear that date. He also issued an occupancy permit in relation to that building permit. In the occupancy permit he states that it is evidence that the building or part of the building to which it applies is suitable for occupation. He issued and signed three different versions of this document with three different dates namely the 17 June, the 24 August and the 16 November 1998. Each, by the way, recorded that the number of storeys in the building was one. The first, dated 17 June 1998 (exhibit S16) lists the date that approval was given in relation to each for mandatory inspections. They are set out as follows:-

Approval Date

Inspection for steel for slab 19/06/1998

Inspection of framework 24/06/1998

Inspection for Occupancy Permit 17/06/1998

17/06/1998.

31. This version of the Occupancy Permit was provided to the Council and appears on the Council's file. It is discrepant. How can it be that Mr Alexopoulos signs and dates a document 17 June 1998 indicating that he was going to approve the inspection of steel for slab two days later on the 19 June? Furthermore, how can be give the date of approval for the inspection for occupancy as the 17 June 1998 before the inspection of steel for slab or the inspection of framework. The building has to be built before it can be approved for occupancy. In any event, how can there be an occupancy permit with an approval date of the 17 June 1998 when that was also the date of the issue of the original building permit?

32. The second version of this document is exhibit S32 which was produced from Mr Laird's brief in the course of the hearing. It is signed and dated 24 August 1998. It varies from the S16 version in a number of particulars. The "PROJECT FILE JOB ID" appears as 981353A instead of 981353; the permit number appears as 9181353/1 instead of as 981353; the builder appears as "Valedile P/L" rather than as "ELIO CELOTTO"; the project description is given as "Construction of DWELLING-VARIATION TO 981353- CHANGE OF BUILDER ONLY" rather than "CONSTRUCTION OF DUAL OCCUPANCY (ONE ADDITIONAL DWELLING); the project classification is given as "1a" rather than as "1A11"; the allowable live load is left blank rather than appearing as "1.5KPA"; the inspection of framework approval date is "27/07/98" rather than "24/06/1998" and the inspection for occupancy permit approval date is given as "24/08/98" rather than "17/06/1998"; all as compared with the S16 version.

33. I should say that Valedile Pty Ltd is a company of which Elio Celotto is the secretary and sole director. That company is the current proprietor of a registered business name being "CHE BELLO CONSTRUCTIONS".

34. The third version of this same occupancy certificate is exhibit S33. It is dated Monday 16 November 1998. It follows the S32 version down to the project description. That is given as "Construction of Dwelling". The project classification is given as "1Aii". The inspection of framework approval date is given as the "24/08/98" and the approval date for the inspection for occupancy permit is "16/11/98". This version was photocopied during the hearing from a pink duplicate copy on Mr Alexopoulos' file. He claimed this was the true one. He apologised for all the discrepancies. He made similar apologies for a number of other discrepancies in his evidence. He was not able explain or account for the discrepancies. He merely apologised and made assertions as to which was correct. It is hard to see how all this could possibly happen if true records were kept and only true documents were issued.

35. Part of the explanation may arise from a circumstance that I found particularly disturbing. In the course of the hearing Mr Alexopoulos produced exhibit S31. This is an original copy of the occupancy permit. It corresponds with the S33 version. It is on yellow paper with the coloured letterhead of Metro Building Surveying P/L. It has an original signature of Mr Alexopoulos. It was produced as a true document. It is dated 16 November 1998 and purports to have been signed on that date. It emerged in evidence that it had been first created on the 11 August 1999, that is, the day on which Mr Alexopoulos was giving evidence. He had run it off his computer that morning before coming to the Tribunal and signed it, purportedly on the 16 November 1998 but actually on the 11 August 1999.

Building Permit is Issued

36. So much for Mr Alexopoulos' reliability as a witness. I diverted from my account the history of this case because I thought it important to express my misgivings about the reliability of the evidence of Mr Alexopoulos and something of my reasons for having such misgivings. I had got to the stage where Mr Celotto, on behalf of himself and his co-owners of the land applied to Mr Alexopoulos for a building permit for a single storey dwelling on what has become 5 Harold Street, Sandringham. Mr Alexopoulos issued building permit No. 1574/981353/0 (exhibit S14) dated 17 June 1998. Elio Celotto of 20 Patterson Street, Middle Park is specified separately as agent, owner and builder. The site area is given as 324m2 (although it was really still part of the larger 22-24 Norwood Street at that stage) and the total new floor area as 148m2. The nature of the building work is given as "CONSTRUCTION OF DUAL OCCUPANCY (ONE ADDITIONAL DWELLING)". The project classification is "1AII", the number of projects works is "1", the number of storeys is "1", the project estimated value is $80,000.00, there is a notation saying that an occupancy permit is required prior to occupation. As to commencement and completion the following appears:-

"Building work to commence by: 17/06/1999 and is to be completed by: 17/06/2000".

There is a list of mandatory inspections namely pre-slab, steel for slab, framework and occupancy, and a list of three practitioners one being Elio Celotto DB-U5264 said to be engaged in various parts of the building work and two others who prepared documents only.

37. Before going on to describe what was built, I will refer to exhibit S19. This is also a building permit issued by Mr Alexopoulos in relation the single storey dwelling. The permit number is 154/981353/1. Like the original version, S14, this was received by the municipality and stamped accordingly. Both were referred to K Ball and this one is endorsed file No. B/A 981353/1. The nature of the building work is specified as "CONSTRUCTION OF DWELLING -VARIATION TO 981353 - CHANGE OF BUILDING OWNER". Elio Celotto of 20 Patterson Street, Middle Park remains specified as agent and owner, but Valedile P/L, of the same address, appears specified as builder. Elio Celotto still appears in the practitioners list as engaged in various parts of the building work. The number of project works, whatever that means, has increased from 1 to 2, the project's estimated value appears as $0.00 and the dates by which there is to be commencement and completion have been amended from 17/06/1999 and 17/06/2000 to 06/08/1999 and 06/08/2000 respectively. Date of issue is 6 August 1998.

Approved Building Permit Plans for Single Storey House

38. As previously mentioned, the approved plans in relation to that building permit were also endorsed on the 17 June 1998. They depict a single storey house on what is now 5 Harold Street. There are also drawings of the two storey structure on the Norwood Street frontage however, in each instance, the two storey sections have been crossed out. The "heading", if that is the right term, on the side of the plans, indicates that the work is for Elio Celotto, that it relates to 22 & 24 Norwood Street, Sandringham and that it is for "PROPOSED ADDITION TO EXISTING RESIDENCES & NEW SINGLE STOREY RESIDENCE" except that the words "PROPOSED ADDITION TO EXISTING RESIDENCES" have been struck out. The plans show a trussed roof structure to be under tiles at 22.50 pitch on batons "38 x 75 F8 HW @ 330 CRS". The framework and structural work for this building, as shown on the plans, is for a conventional single storey house. It does not show the inclusion of beams to support a second storey. It does not show "posistruts" to support a second storey.

Stage One of a Two Storey House - Contrary to Approved Plans

39. Although Mr Celotto and his company, Valedile Pty Ltd, were obliged to build in accordance with the approved building plans, and although Mr Alexopoulos was obliged to conduct inspections and see to it that the plans were complied with, these things were not done in a very significant respect. The structural work was not carried out in accordance with the plans, but, at considerable extra expense, was constructed in such a way as to facilitate removal of the roof structure and to provide structures including structural beams and posistruts to support a second storey. Mr Pitt, with some justification, described this as being not a single storey house at all but, as will appear, as a two storey house built in two stages.

40. Posistruts would not normally be provided in a structure like this one, and, in any event, these were flooring posistruts rather than roof or ceiling posistruts. They are designed and installed to support the floor of an additional storey, rather than the ceiling or roof of a single storey house.

41. The structure as erected was over-designed and over-engineered for a single storey house, and the additional costs involved were sufficiently substantial that no prudent person would incur them unless they intended, from the beginning, to construct a two storey house. There was some controversy about the amount of this additional expense. Mr David Dickins, the structural engineer of Fisher Stewart Engineers called as an expert witness on behalf of the Responsible Authority, after some consideration of what was involved, estimated the additional cost at $10,000.00. After rigorous cross-examination on the point, he maintained that view. I reject the counter suggestion, supported by no evidence, that the additional cost would be only $2,500.00. Allowing everything put to Mr Dickins to persuade him to reduce his estimate, including that Mr Celotto is a builder and can do work for himself at a cheaper price than engaging an outside builder, I am satisfied, on the evidence, that the additional costs would be, at the very least, in excess of $6,000.00. It is not necessary to come to a final view as to this, except to the extent of saying that the figure is significant in the circumstances. Although I am certain the figure must exceed $6,000.00, I actually accept Mr Dickins' figure of $10,000.00.

42. I note that when the single storey building was completed all these items were covered up with ceilings, roofs, plaster and the like so as not to be evident.

43. Mr Alexopoulos was well aware of the departure from the plans. He claims to have been unconcerned about this because the over-engineering, although a waste of money for a single storey structure, did not detract from the structural integrity of the building. His view was why should he worry if someone wastes money over building a structure as long as it will be safe and sound when completed. The approved plans could be varied if he approved such variations. He says that he did approve of the variations. He has no documentary evidence or record of having done so. He admits that he was under an obligation to record any such approved variations and to advise the Council. He said:-

"When I inspect I approve variations. I should advise the Council, but in the real world discretion is exercised."

44. No such discretion as to whether to advise the Council exists; or at least no such discretion lawfully exists.

45. The result was that these variations were kept secret from the Council. If the Council building department had been advised, that may or may not have alerted them or the Council planning office as to what was going on. Any risk of detection by this means was avoided by Mr Alexopoulos' "discretion".

Subdivision Permit - No. 98/3400

46. It had always been the intention of the owners to subdivide the land known as 22-24 Norwood Street, Sandringham into three allotments. Each of the three dwellings would be on a separate lot so that each could be disposed of separately. A planning permit was required for this subdivision. It was applied for and granted on the 18 March 1998. It is permit No. 98/3400. It is pursuant to this permit that the site of the single storey house became a separately disposable allotment, being allotment 3 on Plan of Subdivision No. 417308W. In granting this permit the Responsible Authority imposed a condition which was, in my opinion, clearly aimed at achieving and maintaining the previous determination of the AAT that only a single storey house should be allowed on Lot 3. However, Lot 3 was proposed to have, and now does have an area in excess of 300m2. Detached house, in this Zone, is a use for which permission is not required. Another control provision in the planning scheme requires planning permission for a detached house in this Zone if the site area is less than 300m2, but any allotment in excess of 300m2 can be developed and used for a detached house without the need for any further planning permission. If 5 Harold Street was created, by the subdivision, as a separate allotment exceeding 300m2 in area, then a detached house of 1 or 2 storeys could be constructed there, without the need of further planning permission. Also any existing single storey house on that land could be converted into a two storey house without the need of further planning permission. If the proposed three lot subdivision were simply granted, without some special condition in relation to what could be built on Lot 3, then it would be open to the owners, or their successors, to build a two storey house, or convert a single storey house into a double storey house, thus destroying the effect and intension of the Tribunal, made on a careful consideration of the planning merits, to refuse a two storey house after this piece of land.

Condition 5

47. The means of avoiding that result was to impose condition 5. It reads:-

"The applicant must enter into an agreement under Section 173 of the Planning and Environment Act with the Responsible Authority to the effect that the development of Lot 3 and indicated on the Plan of Subdivision shall be in accordance with the approved plans forming part of Planning Permit No. 97/2656 or any amendment to the plans approved by the Responsible Authority. The agreement shall be prepared and executed at the applicant's/owner's cost."

Section 173 Agreements

48. I believe that s. 173 PE Act, and its forerunner, s. 52A of the Town & Country Planning Act 1961, were introduced into those respective Acts to deal with situations like this one, amongst others. Some planning permissions were thought to be inappropriate to grant unless certain control was maintained in relation to future use or development of the land where it was doubtful that the sort of control desired could be validly achieved simply by means of a permit condition. Prior to s. 173 and its forerunner, agreements in the form of deeds under seal were sometimes employed in such situations. Even then there were some arguments and uncertainty as to whether such agreements, or such agreements pursuant to conditions in permits requiring them, were altogether effective in their desired purpose. That gave rise to legislative amendment to clarify the matter. The present provisions of this sort appear in Division 2 of Part 9 of the PE Act commencing at s. 173 and running through to s. 184. Section 173 provides that a Responsible Authority may enter into an agreement with an owner of land (or a person in anticipation of the person becoming owner of the land) and may do so on its own behalf or jointly with any other person or body). Section 174 provides for the form and contents of agreements, and later provisions enable the existence of such an agreement to be noted on the title of the land as an encumbrance. Sections 176 and 177 provide for the commencement and ending of agreements and s. 178 for their amendment. Section 181 relates to the registration of agreements on land titles. That is of some importance because s. 182(a) provides that, after the making and registration of the agreement the burden of any covenant in the agreement runs with the land. Section 182(b) goes on to provide that the Responsible Authority may enforce the covenant against any person deriving title from any person who entered into the covenant as if it were a restrictive covenant despite the fact that it may be positive in nature or that it is not for the benefit of any land of the Responsible Authority. Section 183 provides for the cancellation or alteration of such registration and s. 184 enables an owner to apply to the Tribunal if he, she or it objects to provisions in an agreement.

49. Section 174(1) provides that the agreement must be under seal and must bind the owner. Section 174(2) provides that such an agreement may provide for, amongst other things, the prohibition, restriction or regulation of the use or development of the land. Actually the matters that an agreement may provide for are quite wide including the conditions subject to which the land may be used or developed, any matter intended to achieve or advance the objectives of planning in Victoria or the objectives of the planning scheme or any matter incidental to those matters. Clearly the prohibition of a two storey dwelling on 5 Harold Street, and its restriction to a single storey are a regulation of the use and development of that land and as such comes within s. 174(2)(a).

Permit Conditions Requiring S. 173 Agreements

50. Section 62(1) deals with certain conditions that must be included in a planning permit and 62(2) provides that the Responsible Authority may include any other condition that it thinks fit including, in s. 62(2)(f):-

"(f) a condition that the owner of the land or applicant for the permit in anticipation of the applicant becoming the owner of the land is to enter into an agreement with the Responsible Authority under section 173 within a specified period or before the use or development or a specified part of it starts."

51. Thus sections 173 and 174 provide for the creation of agreements. Pursuant to both statutory provisions they can provide for the sort of thing contemplated in condition 5 of the subdivision permit. Section 62(2)(f) authorises the inclusion of a condition in a permit requiring such an agreement.

52. Both those sections in relation to agreements, and paragraph (f) in s. 62(2) in relation to conditions requiring agreements, are to clarify the authority for and the validity of such arrangements. Both phenomena, that is to say agreements under seal in relation to planning matters and conditions requiring them, were employed prior to the existence of any of these statutory provisions. The existence of the statutory provisions is not to say that the prior arrangements were necessarily invalid, or would be invalid if repeated today, but they do have the advantage of clarifying the situation and avoiding argument about validity in relation to agreements or conditions that follow the terms of the statute. Mr Peake agreed with this. He carried the burden of legal argument on behalf of his client and Mr Laird adopted his submissions.

Interpretation of Condition 5.

53. The wording of condition 5 in this subdivision permit was criticised during the hearing. I am obliged to agree that its wording could be improved upon. That does not mean that the condition is necessarily invalid, as urged, in particular, by Mr Peake. Any particular form of condition must be considered and interpreted, and its validity assessed on its own terms and in light of the tests of validity, and not dismissed because its wording could be improved upon. An old second hand Holden may still be an effective motorcar, even if it is not as well presented and elaborated as a new Mercedes. There have been warnings in Supreme Court cases dealing with planning matters about the application of overly technical legalistic (even exotically legalistic) standards to practical documents such as planning schemes and planning permits, normally drafted by non-lawyers and intended to serve practical purposes. Such documents are to receive sensible and reasonable interpretation giving effect to their purpose if that is possible. In argument Mr Pitt referred to Altona CC v Protean (Holdings) Pty Ltd (1981) 63 LGRA 284 where Murphy J of the Supreme Court of Victoria said:-

"The interpretation of the ordinance and its accompanying map assumes apparently that a degree of common sense will be applied and that literal statutory interpretation may not always be appropriate."

Nevertheless these instruments do effect people's legal rights, and planning schemes are a form of subordinate legislation, and this has to be borne mind when interpreting, applying and enforcing them.

Owners Applied for Subdivision Permit Through Their Agent.

54. One attack on the wording of this condition is that it imposes the requirement to enter a s. 173 agreement on "the applicant". Section 173 and s. 62(2)(f) provide for the agreement to be with the owner of the land. The owner in this case was, of course, the joint owners, namely the joint venturers. The actual name, appearing as applicant on the permit application form that gave rise to permit 98/3400 was John Edwards, the town planner and land surveyor. He was called as a witness by Mr Scally.

55. Mr Edwards gave evidence specifically that he acted, in applying for the subdivision permit, for the three owners of the land being Sullivan, Celotto and Novamero Pty Ltd. He did so on instructions given to him by Mr Celotto. I might say that all the other surrounding circumstances disclosed by the evidence confirm this testimony and that I have no difficulty in accepting what Mr Edwards said in this and other respects.

56. The true applicants for the subdivision permit were the three owners, and Mr Edwards merely acted as their agent. He did not own the land, he had no part, other than a professional one, in their venture and he was not seeking the subdivision for his own benefit. Indeed the application contained a declaration that the owners were aware of it. Mr Edwards firm had surveyed the land and lodged documentation but the clients paid the fees and the documents were sent to the clients.

57. It is quite a common, although I think rather undesirable practice for consulting planners, architects and others acting as agents for owners or developers to apply for planning permits in their own name and without disclosing the agency or identity of their principals. It might be undesirable, but that does not mean that agency does not exist or that the procedure gives rise to an invalid application or permit. Neither does it contradict the circumstances that the clients are really the principals and, in this case, in any event the owners of the land.

58. It would have been better if this condition had referred to the owners of the land, but it referred to the applicant who, when the agency is appreciated, are the owners.

59. On my understanding principals, even undisclosed principals, are bound by their agents' dealings, particularly when they have adopted, ratified and acted upon them. Mr Peake sought to raise some arguments as to this but was, I thought, effectively rebutted by the authorities cited against him. Vincent & Anor v Johnstone SC & Ors (1995) 89 LGERA 283 and McRae & Ors v Coulton & Ors (1986) 7 NSW LR 644, a decision of the New South Wales Court of Appeal was referred to in this connection. At page 663 in the McRae case Hope JA (with whom the other members of the court agreed) said:-

"The first question is whether the applicants must sign personally, or whether signature by an agent on behalf of the applicants was permissible. It has long been the law that, where a provision of a statute or of delegated legislation requires that a document shall be signed by a particular person, prima facie that provision does not exclude the common law rule qui facit per alium facit per se [that is to say, he who acts through another is deemed to act in person, in other words the principal is liable for the acts of the agent] and if the person authorises another to sign on his behalf, a signature made by the other pursuant to the authority is equivalent to the signature of the person giving the authority". [I have added the square bracketed explanation of the Latin expression].

61. A the number of authorities are cited and discussed in the above two cases. It is recognised that there are situations in which personal signature is required. I think it is clear that this is not one of them.

62. A number of passages from Bowstead on Agency, 12th edition were cited. I refer to page 18 where, in relation to signature by proxy, it is said:-

"As a general rule, 'at common law a person sufficiently "signs" a document if it is signed in his name with his authority by someone else' an indication that the signature is per procurationem [that is to say as agent on another's behalf] is desirable but not essential". [Square bracketed explanation of Latin added].

"No one can become the agent of another person except by the will of that other person. His will may be manifested in writing or orally, or simply by placing another in a situation in which, according to ordinary rules of law, or perhaps it would be more correct to say, according to the ordinary usages of mankind that other is understood to represent or act for the person who so placed him."

63. It is obvious from all the circumstances, as well as his sworn evidence, that Mr Edwards was acting on instructions and as agent for the three owners pursuant to instructions given to him by Mr Celotto. There is no substance in Mr Peake's contention that there is no power in an agent to delegate or engage an agent, as Mr Celotto did in engaging Mr Edwards on behalf of the co-owners as well as himself. There may be a general rule to that effect but there are plenty of exceptions, see page 85 of Bowstead, several of which are applicable here. Not only was Mr Edwards engaged and instructed to act as agent, his actions in that capacity were accepted and amply ratified and acted upon.

Sullivan, Celotto and Novamero Pty Ltd were the Owners and Applicants for the Subdivision Permit.

64. The second sentence of condition 5 in fact refers to "applicants/owners" rather than "applicant" when it refers to who is to be responsible for the preparation and execution of the agreement required by the first sentence. This is a fuller and more correct formulation. Ms Sullivan, Mr Celotto and Novamero Pty Ltd were the true applicants and the owners. The reference to "the applicant" at the beginning of the first sentence is an inconsistency of expression compared with that used in the second, but it is a mere slip. It is clear, on a proper and reasonable interpretation, that it is the three owners who are to enter the agreement and be responsible for the costs.

65. Both s. 62(2)(f) and s. 173 refer principally to the owner, but also make reference to applicant. However, that is really to cope with the situation where someone is not yet truly the owner but has applied for a permit in anticipation of becoming the owner. Perhaps this is how the term applicant has crept into some peoples precedent for drafting such conditions as this one.

Is Condition 5 Invalid for Not Specifying Time for Entering Agreement?

66. Another suggested defect in the drafting of condition 5 is its failure to specify a time within which the agreement is to be entered or alternatively to state that it must be entered before the use or development starts. Such a specification would fulfil the latter part of s. 62(2)(f).

67. Mr Peake wants to argue that the whole condition is invalid for failure to specify a time or otherwise explicitly signify when the agreement must be entered. Alternatively, he argues that in the absence of such time limit there cannot be a contravention of condition 5 because it cannot be shown that the time within which the agreement is to be entered has, or will ever, expire.

68. I agree with him that it would be better if a period had been specified, but beyond that I think he indulges in excess technicality and exotic legality. It would be better if the condition stated that the agreement must be entered before a statement of compliance under the Subdivision Act 1998 or before the development constituted by the subdivision commenced. That would have made the matter quite clear and the commencement of the contravention committed by the owners' failure and refusal to enter an agreement explicit.

69. Nevertheless, I think it is perfectly obvious that the agreement is intended and required and that it is implicit that it is required to be entered by the commencement of the development, that is to say the subdivision and certainly before its completion. In this case the owners have acted on the permit, prepared and lodged a Plan of Subdivision, had it registered, received separate titles, sold off the separate pieces of land and settled those transactions, all without having complied with condition 5. It is implicit, indeed it goes to the heart of the condition, that the agreement must be entered into before lodgement and before registration. The obligation under the agreement does not cease because of failure to comply with the requirement to enter the agreement when that obligation first arose. It is, in my opinion, a continuing contravention, and a continuing offence, that goes on until the obligation is fulfilled.

Purpose of Condition 5.

70. I am satisfied that the purpose of the condition, and the agreement it contemplates, was to prevent a two storey house on the land and to require a house complying with the permit granted by the AAT, including its endorsed plans. The requirement was not, and was not intended to be, transitory. It was not contemplated that the house would be subsequently converted into a two storey dwelling. The purpose of the agreement was to impose a continuing obligation to maintain it as a single storey dwelling. I also believe that the permit for subdivision would not have been granted at all if the Responsible Authority had not been able to impose condition 5 and believed itself to be able to validly impose that condition.

71. The owners have accepted the benefit of the permit and acted on it without complying with the condition. If they were dissatisfied with the condition, as to its drafting, its validity or its fairness and appropriateness; they had their remedy of being able to appeal against the condition under s.80 PE Act (such appeals are now referred to as applications for review, but appeal was the correct expression in May 1998). There are other proceedings they might have taken too, but I think it is significant that they did not appeal. The legislation and various relevant forms make it clear that they had this right and the owners, in their various manifestations, are not inexperienced in these matters. They appealed, through Novamero Pty Ltd, in relation to the application that gave rise to the permit limiting construction on 5 Harold Street to one storey. Furthermore they had access to expect advice from the relevant professionals they engaged to act on their behalf. I believe that the decision not to appeal was a deliberate one.

72. It was suggested by Mr Peake that the purpose of the condition was a different and more limited one to that of ensuring a single storey dwelling in compliance with the earlier permit. Indeed, after the subdivision permit was issued, various representations were made to some officers of the Responsible Authority seeking to persuade them that the purpose of the condition was merely to ensure completion of the house in accordance with the plans, or to ensure that the site was not left vacant or with a half constructed building. There are other forms of condition employed to prevent those ills. However it was put that such objectives would be achieved on completion of the house thereby rendering the condition requiring 173 agreement redundant. I accept that such representations were made but also that they were misleading and designed to inveigle officers, if possible, into agreeing to not requiring the 173 agreement, although it was, and always was, necessary to achieve the true purposes of the condition. I do not accept the alternative and lesser versions of the purpose of condition 5 argued for by Mr Peake or by those making such representations to Council officers.

Statement of Compliance does Not Nullify Condition 5.

73. It would have been better if the condition had insisted on the entering of an agreement prior to a statement of compliance and if Council officers had not been inveigled into granting a statement of compliance without a satisfactory agreement having been entered. This does not mean, as also argued by Mr Peake, that the Responsible Authority, and the public generally including Mrs Hall, have foregone their right for all time to have the condition complied with and the agreement entered. Refusal to grant a statement of compliance, and therefore the ability to proceed with the subdivision, is a very powerful compulsion on an applicant/owner to provide the agreement or do whatever else might be necessary to obtain the statement of compliance. The existence of that generally effective method of obtaining compliance with such a condition does not mean that compliance with the condition cannot be sought by any of the conventional means of enforcement that are normally open in relation to any condition. In this connection I have in mind the obtaining of an enforcement order, prosecution and, perhaps, the obtaining of an injunction. It might be convenient for me to have a newspaper delivered to my house. If I forego that opportunity it does not mean that I have foregone all opportunity to have a newspaper. I can still buy one at the newsagents or at the station or from a vendor on a street corner. So it is with the opportunity to require execution of the agreement prior to issuing a Statement of Compliance and the opportunity to withhold such statement until the agreement is executed. Such withholding would be a good and effective strategy, but failure to adopt it does not invalidate the condition or forego other means of having it complied with.

74. As I have said, the owners, having been issued with the subdivision permit did not appeal against condition 5, or comply with it, but sought to evade it by persuading the Council to grant a certificate of compliance without them having entered an agreement in accordance with condition 5.

Evidence of Ms Sullivan

75. In May 1998 the subdivision permit was issued. Ms Sullivan gave sworn evidence in the course of the hearing, although Mr Celotto did not. She stated that the purchase of 22-24 Norwood Street by the three owners was an investment and that it was always intended to develop the land by subdividing it into three and by constructing a house on 5 Harold Street which she would acquire. She always wanted a two storey house. A single storey house would not, in her view, be adequate. In the course of giving evidence about the size of the house she said "I wanted a bigger house. A single storey would not suffice".

76. In giving her evidence she sought to portray herself as something of "an innocent abroad". She said she relied on Mr Celotto, on the basis that he was more experienced, and he acted as her agent. She also had advice from "my solicitor". In fact the reference to "my solicitor" referred to Galbally & O'Bryan who also acted for Celotto and Novamero Pty Ltd. The actual solicitor from Galbally & O'Bryan handling these matters was a Mr Frank Di Iorio, a partner of the firm. He shares a surname with the director and secretary of Novamero Pty Ltd. In correspondence he made reference to "Our client - Mr Domenic Di Iorio". I can accept that Ms Sullivan may have relied upon and accepted advice from Mr Celotto and the solicitor. I do not accept that she was unaware that she and they were seeking to circumvent the requirements of condition 5 and its aim of ensuring that only a single storey house was allowed on the land. Furthermore she is bound by the actions of those men acting as her agent.

77. Ms Sullivan gave sworn evidence that in March 1998 she was concerned that the owners should be in a position to settle transactions for the sale of Lots 1 and 2 because the funds were required. In fact Mrs Hall was the purchaser of Lot 2, the dwelling on the front of the original allotment nearest to Harold Street in the corner of its intersection with Norwood Street.

Mrs Hall Purchases Lot 2.

78. Mrs Hall also gave sworn evidence. I found her to be a credible witness. I believe her when she says that she inspected the property 3 or 4 times before she signed the contract note to purchase it. She took her daughters and her husband and a friend to see the place. She was shown over this and a number of other properties by the estate agent. She noticed particularly a protruding window recently constructed at first floor level looking out over the land to become Lot 3 ie 5 Harold Street. This window enjoyed an extensive view of the sea (Port Phillip Bay). The window also meant that the room enjoyed good light. She was particularly interested in this room to be her work room, and a place suitable for her to do her painting. She said that it was a big consideration in buying the property that it had this view of the sea and good lighting.

79. I interpose here an observation of my own. It is true that the construction of a two storey dwelling at 5 Harold Street, or at least the present two storey house standing there since the original one storey building was extended, has a considerable adverse impact on the amenity of the dwelling purchased by Mrs Hall. This is particularly true in relation to the room lighted by the protruding window that she mentioned. It is true in relation to the view as well as light through that window and into that room. The existing two storey structure next door at 5 Harold Street also has other adverse amenity effects on her property. A window in the first floor wall of the neighbouring property faces to a window of hers and lighting and "feeling of enclosure" are adversely affected by the height and bulk of the extended structure next door.

Avoiding Condition 5.

80. I also believe Mrs Hall when she said that she read the contract note and vendor statement, together with attached documents before she signed the contract note. The documents included a copy of permit 97/2656 for the development of a single storey house, and permit 98/3400 for subdivision of the land including its condition requiring construction of a single storey house in accordance with permit 97/2656. On the basis of these documents she believed she could safely assume that the house on 5 Harold Street could only be of one storey and would have to accord with the endorsed plans of permit 97/2656. I also accept her statement that, at the time of signing the contract note on the 7 April 1998 she had no notice, in documentary form or by any other means, of an intention to construct a second storey house next door. She believed she would have her view and she said she would not have considered the purchase of the property to be a good investment if there was danger of it being lost and of a two storey building being constructed next door.

81. She moved into the house in May 1998, although settlement did not take place until the 11 December 1998. In the meantime Mr Celotto constructed the single storey house next door or, as it has turned out, the ground floor stage of a two storey house. She experienced some concern on steel beams being delivered in about July 1998 and she had a conversation with Mr Celotto. He told her, and I think it was at this stage, of a desire to add a second storey. This was after entering the contract and moving in. As to this she said:-

"I really thought they had Buckley's hope because they had already been knocked back at a hearing and I thought any amendment would have to go back to the AAT. I had had another case there which made me think that. I thought I would be able to object if that happened."

82. In the meantime the vendors were taking action directed at undoing the effect of the permits, and condition 5 of the subdivision permit that had been attached to the vendor's statement in relation to the transaction with Mrs Hall. Ms Sullivan was aware of the requirement for a s. 173 agreement, but says that she was reluctant to enter it. I suppose she was, since she wanted to construct a two storey house on the land. She claimed, that she did not understand the effect of being required by the condition to enter the 173 agreement. At least that is what she sought to convey. She said:-

"I did not really understand it except that it would somehow effect my property."

"I would have a caveat on my property if I signed ."

83. She further said in relation to this matter, which she thought was like a caveat:-

"I thought Council would have some power over my land. I didn't know what. I had no idea it had anything to do with the single storey."

84. I am unable to believe these protestations. I am satisfied that they are untrue and that she knew well enough that it was these matters, that is to say the permit condition and the required agreement, that stood in the way of her ambition to build two storeys.

85. In March 1998 there were several conversations with several Council officers in which the question of the entering of the required s. 173 agreement were discussed. Each of these conversations was initiated by or on behalf of Ms Sullivan or Mr Celotto. Neither Mr Celotto nor any of the officers gave evidence, and I have only hearsay as to what they said or how the conservations were conducted. I do know that all of the conversations were initiated by Ms Sullivan or her agents and that there was an interest on their part in persuading the officers that the purpose of condition 5 was limited to ensuring the completion of the single storey dwelling in accordance with the endorsed plans for the first permit, and that once this was achieved the purpose of the condition would be fulfilled and that there would be no continuing need for the owners to enter the 173 agreement required by the condition. I am asked to accept that several officers, in several conversations with different people volunteered that the purpose of the condition was so limited and that the need for the agreement would be exhausted, and that the condition would become redundant, once the single storey building was completed in accordance with the plans. In the absence of more, and more reliable evidence, it is difficult to come to a concluded view as to whether such propositions were volunteered, or whether they were subtly suggested with an invitation for confirmation, and perhaps with a challenge to nominate any other possible purpose. I am satisfied of three things in relation to these conversations. The first is that they were initiated on behalf of the owners with a view to obtaining concessions that would avoid having to enter the agreement. The second is that they were successful (so far) in this purpose. The third is that at no stage was it suggested that agreement to issue a statement of compliance without the 173 agreement would be immediately followed by the conversion of the single storeyed house (recently completed in accordance with the plans) into a two storey dwelling, contrary to condition 5 to accord with the intentions entertained all along by the owners. Nobody claimed that any such disclosure was made. It would have alerted the officers to the real intention and at least put them on inquiry as to whether the request to waive the 173 agreement prior to statement of compliance should be acceded to. I have little doubt that the concession was made on the assumption that a single storey house only would remain and without an appreciation that the concession would enable, not only the subdivision to proceed, but also the conversion to two storey construction. Any intermation of that sort of intention would surely have caused at least one of the officers involved to be put on inquiry, to have reviewed the file with some thoroughness, to have sought the views of superiors or the person or Council who granted the subdivision permit, and possibly to have sought legal advice. I note, by the way, that it is not clear whether the subdivision permit was granted by the Council itself, or by a delegate. Mr Peake agrees that this permit is not established on the evidence.

86. On the 31 March 1998 the Council received a letter dated 30 March 1998 from Galbally & O'Bryan (exhibit S10). The letter bears a reference which I take to be that of Frank Di Iorio. The reference reads:-

None of the other partners, consultants or associates listed on the letter head have the initials "FD". The letter reads as follows:-

"Attention: Mr Des Nash

Subdivision Officer.

Bayside City Council,

P.O. Block 27,

SANDRINGHAM, VIC. 3191

Dear Sir,

Re: Our client - Mr. Domenic Di Iorio

Town Planning Application 98/3400

22-24 Norwood Street, Sandringham

_________________________________________

We refer to our telephone conversation on 20th March 1998.

We confirm that it will not be necessary for our client to enter into a Section 173 Agreement if the site is developed in accordance with the approved plans forming part of Planning Permit No. 97/2656.

Yours faithfully,

GALBALLY & O'BRYAN

Per: ".

87. I note the line that reads "Re: Our client - Mr Domenic Di Iorio". In view of all that has happened in this case I notice that this disguises the interest of the three true clients in the matter namely Chantel Sullivan, Elio Celotto and Novamero Pty Ltd. It makes no mention of the company Novamero Pty Ltd, (although Domenic Di Iorio is its secretary and director) which was the applicant and agent for the other two in applying for the original development permit. It will be recalled that this permit application 98/3400 was made in the name of Mr Edwards.

88. A second letter dated 16 April 1998 (exhibit S11) with the same reference, same address and "re" the same matters read as follows:-

"We refer to our letter to you dated 30th March, 1998.

We are instructed that our client has sold Lot 2 of Plan of Subdivision 417308W.

A prospective purchaser of Lot 3 of the subdivision has noted that Planning Permit 98/3400 refers to a Section 173 Agreement.

Our client has informed the prospective purchaser of your telephone conversation with Frank Di Iorio of this office on the 20th March, 1998 wherein you advised a Section 173 Agreement will not be required if Lot 3 is developed in accordance with the approved plans forming part of Planning Permit 1997/2656. The prospective purchaser wishes to sight a letter from you confirming your telephone advice. Please provide us with such a letter.

Could you also advise at what stage of the development of Lot 3 you will issue a Certificate of Compliance with respect to the subdivision. This will allow our client to advise the purchaser of an estimated settlement date.

Yours faithfully,

Galbally & O'Bryan

Per: ".

89. This is a disingenuous letter and I am surprised that a well known city firm of solicitors lends its name to such a sham. It pretends that there is a legitimate and plausible reason for asking for this confirmation in writing by further pretending that there is an "at arms length" purchaser who genuinely requires such a letter. It disguises the fact that the vendor is not Dominic Di Iorio, but Chantel Sullivan, Elio Celotto and Novamero Pty Ltd and it disguises the fact that "the prospective purchaser" is not at arms length from the vendors, but is one of them. The sentence commencing "Our client has informed the prospective purchaser ..." is particularly deceitful. Ms Sullivan is "our client", vendor and prospective purchaser all in one. Did she inform herself? Why were these things not disclosed? Presumably because of a desire to imply that an arms length the purchaser was hesitating over buying and required the confirmation.

90. A reply to Galbally & O'Bryan dated 24 April 1998 is S12. Omitting address, date and references it reads:-

"Dear Sir/Madam,

PROPOSED SUBDIVISION AT 22-24 NORWOOD STREET, SANDRINGHAM

COUNCIL REFERENCE 98/3400

PLAN No. : PS417308 W

Thank you for your letter of 16 April, 1998.

I hereby confirm that there will be no requirement for a Section 173 Agreement if Lot 3 of the above subdivision is developed in accordance with the approved plans forming part of Planning Permit 97/2656.

The Statement of Compliance will be issued once the certificate of occupancy is received by the Council.

Should you have any further inquires, please contact Council's Subdivision Officer, Mr Des Nash on 9599-4361.

Yours faithfully

Simon Mitchell

STATUTORY SERVICES CO-ORDINATOR."

91. Oddly the letter is not signed. A short line appears where the signature should appear.

92. On the 4 June 1998 Ms Sullivan entered a building contract with Mr Celotto or his company for the construction of the single storey house. It is interesting to note that the contract price is $120,000.00, not the $80,000.00 that appeared on building permit No. 1574/981353/0 (exhibit S14) issued by Mr Alexopoulos on the 17 June 1998. I suppose that the difference represents a little saving in favour of Mr Celotto of fees payable under the Building legislation.

93. On the 8 July 1998 Galbally & O'Bryan wrote another letter (exhibit S17) with the same reference, same address and same identification of a single client re the same matter which reads:-

"We refer to a copy of your letter to our office dated 24th April, 1998 which was provided to our client and the original of which was never received by our office.

A copy of the letter is enclosed.

The copy provided to our client is unsigned.

As it will be necessary to enclose the letter in a Section 32 Statement, we would be obliged if you could provide us with a further copy of the letter duly signed either by yourself or Mr Mitchell.

Yours faithfully,

GALBALLY & O'BRYAN".

94. Again we have the pretence of a single client and an at arms length dealing with a purchaser whereas the purchaser was one of the vendors and knew all about it. I might say that it is admitted by Mr Peake and specifically not denied by Mr Laird that she was the prospective purchaser being referred to. If she did not know all about it, then Mr Frank Di Iorio of Galbally & O'Bryan had a duty to inform her. She was, after all, his client. She was indeed doubly his client, in her capacity as vendor as well as her capacity as a purchaser. He is personally nominated as the vendors' solicitor on the contract of sale and Galbally & O'Bryan lodged the resulting Transfer of Land dated 28 January 1999 which was signed by each vendor as transferor and again by Chantel Sullivan as transferee.

95. Perhaps a little surprisingly the Section 32 Statement (or Vendor statement) in relation to the sale from Sullivan, Celotto and Novamero to Sullivan does not refer to such a letter. The Council's records contain what appears to be a reply to the Galbally & O'Bryan letter of 8 July 1998. The reply is dated 13 July 1998. Perhaps the reply was not sent. It is in the same terms exactly as the Council's letter of the 24 April 1999, exhibit S12, except for the change of date from the 24 April 1998 to the 13 July 1998. Ms Sullivan's evidence is that the contract and Section 32 Statement were prepared by Galbally & O'Bryan. They are both signed by her. There is no reference to the 24 April letter or the 13 July one. In any event, it was not Ms Sullivan who needed to know, but Mrs Hall. Although she was in occupation, presumably pursuant to some arrangement, her purchase was not settled until December 1998. She was the one relying on condition 5 of the subdivision permit. She was the one who needed to know if there was a letter from the Responsible Authority indicating that the condition need not be complied with. The information was not disclosed to her.

Statement of Compliance Given and Subdivision Proceeds.

96. Construction of the single storey building proceeded, including a structural provision for supporting a second floor. It will be recalled that Mr Alexopoulos, the certified private building surveyor, issued various versions of a certificate of occupancy in relation to that construction. The latest of them was dated 16 November 1998. Presumably it was submitted on or about that date. The City of Bayside, not as Responsible Authority under the planning legislation, but as municipal authority under the Subdivision Act, issued a Statement of Compliance dated 17 November 1998. It was issued without compliance with condition 5 of the planning permit for subdivision as no Section 173 Agreement had been entered. It is in the Form 18 pursuant to Regulations 58(f) and 59 of the Subdivision (Procedures) Regulations 1998. It says that the statement is issued under s. 21 (Subdivision Act 1988) for the whole of the plan of subdivision and that the requirements of parts 2 and 3 of that Act had been satisfied. It is addressed to Mr J R Edwards and informs him that he can lodge the document at the Office of Titles and that if he has not lodged the certified plan, then the statement could be attached to it for lodging.

97. That enabled the Plan of Subdivision to be lodged, the subdivision to be registered, titles to issue and the transactions whereby Mrs Hall and Ms Sullivan purchased Lots 2 and 3 respectively from Ms Sullivan, Mr Celotto and Novamero Pty Ltd to be settled.

Two Storey Construction Proceeds.

98. At this stage we now have a single storey house constructed on the land, apparently although not actually in accordance with the endorsed plans of the original development permit. The paint is hardly dry or the mortar set, before Ms Sullivan and Mr Celotto set about demolishing and removing the roof of the single storey building and constructed their upper storey. The ever helpful Mr Alexopoulous returns to the story to provide a new building permit for the extensions. He writes to the Council's Building Surveyor on the 14 December 1998 asking several things including whether there are any planning controls over the site. He receives a reply dated 21 December 1998 that information regarding town planning permits can be obtained by contacting the Council's Town Planning Department. On the 22 December 1998 he, or an employee rings up at 12.30pm and makes a careful note reading:-

"Site over 300M2, not in urban/conservation area, no Town Planning req'd for adds/Alts to exist dwelling."

99. He issues planning permit No. BS 1574/990783 (part of exhibit S21.1) dated Wednesday 23 December 1998. The owner and builder is Chantel Sullivan of 20 Patterson Street, Middle Park. The only reference to Elio Celotto of the same address is as agent. The nature of the building work is "ADDITIONS TO DWELLING" at "No. 5 lot 3 HAROLD ST (22-24 Norwood St) Sandringham 3191". The total new floor area is to be 110m2, number of storeys "1" (surely a slip) and the estimated project price $60,000.00. Dates of commencement and completion to be by the 23 December 1999 and the 23 December 2000 respectively. The approved plans showed two storey construction. The date of approval of plans is the 23 December 1998 but some of the plans and specifications are dated 5/98".

100. On the 29 December 1998 a building contract for the second storey (exhibit S22) is entered between Ms Sullivan as building owner and Mr Celotto as builder. The contract price is $85,000.00 (as compared with the $60,000.00 appearing on the building permit issued a few days before).

101. On the 1 January 1999 Mrs Hall wrote to the Council saying that that morning she was surprised to notice building materials in front of 5 Harold Street, a single storey dwelling at the rear of her property. She said she was informed that it was for an extension of an upper storey. She continued:-

"I had no knowledge that the approval had been granted for this second storey nor was I or the other neighbours (to my knowledge) informed of the specific details of the proposed plans. I understand that the planning permit for the two storey dwelling had been denied at the early stages for the development of this site. As neighbouring residents, when and how can we express our concerns.

A second storey on my rear boundary will affect the light into my kitchen and family room and the other neighbours will possibly have their own concerns. I believe they are enjoying a Christmas break.

I wish to formerly register my concerns. I have been a Bayside resident for 25 years and I purchased this house last year.

Yours sincerely,

Rosalie Hall".

The letter concludes with a handwritten postscript reading:-

"Gary & Cathy Robinson of 22 Norwood Street have just purchased this property believing NO 5 Harold to be a single storey house just nearing completion."

102. On the 13 January 1999 Mr Pitt of Best Hooper, solicitors wrote to the joint venturers and to the Responsible Authority in relation to the matter. The gist of this correspondence is that the Council is called upon to take steps to rectify the situation by requiring a 173 Agreement to be entered in accordance with condition 5 and threatening that Mrs Hall would take enforcement proceedings if the Council does not.

103. On the 14 January 1999 Mr Sherman of Russell Kennedy, solicitors wrote to Galbally &O'Bryan warning that the situation was in breach of Permits 98/3400 and 97/2656 and suggesting that work should cease and that any further work will be at the risk of the joint venturers.

104. On the 24 January 1999 Russell Kennedy, solicitors wrote to Galbally & O'Bryan, solicitors enclosing a proposed s. 173 Agreement for execution by the joint venturers. They have failed and refused to execute that document and have proposed and executed no other in purported satisfaction of condition 5.

105. The original enforcement order application was lodged on the 12 February 1999.

106. On the 26 February 1999 Galbally & O'Bryan, solicitors, at that stage acting for Ms Sullivan as well as Mr Celotto and Novamero Pty Ltd lodged written grounds of objection as set out above.

Grounds of Objection to Making Enforcement Order.

107. In giving the above account of the history of this matter, including my findings as to contentious facts, I have also discussed some legal questions as they have arisen. However, that does not dispose of all the legal points raised in the course of the hearing. I now propose to discuss those remaining legal matters. After the enforcement order application was made and served, a document containing the grounds of objection of the respondents to the making of an enforcement order was lodged. This document, dated 26 February 1999, was signed by Galbally & O'Bryan on behalf of the three respondents Celotto, Sullivan and Novamero Pty Ltd.

108. That was the stage before Ms Sullivan was separately represented and when Galbally & O'Bryan acted for those three respondents. The grounds of rejection are set out in six paragraphs (a) to (f). They are set out at the head of this document. I now propose to traverse them briefly. However, other points were raised during the hearing by Mr Peake and Mr Laird. No amendment was made to the grounds of objection to making an enforcement order in respect of these further matters. With the benefit of hindsight, I now regret that I did not require them to formulate their further grounds and set them out in amendments to the grounds of objection.

Ground (a)

109. The first of the stated grounds reads:-

"(a) The development was constructed in accordance with Planning Permit 98/3400."

110. That claim is quite incorrect. Firstly, it is true to say that permit 98/3400 was for a development, but it was for a development being a subdivision of the land. This is not a form of development that can be said to be "constructed" at all. It would be a better use of language to say that it is a development that has been carried out in relation to the land. It has not been carried out in accordance with the permit inasmuch as condition 5 required the entering of a s. 173 agreement. No such agreement has been entered, and the respondents have refused or failed to enter one when called upon to do so. I have already dealt with the question of whether there cannot be contravention of the condition by virtue of its failure to specify a time within which, or an event before which, the condition must be complied with. I found that it is implicit that the condition must be complied with, at the very latest, by the point of time where the subdivision was registered. There was a contravention of the permit and its condition 5 once that point was passed without the 173 agreement having been entered, and that contravention has continued to date and is continuing.

"(b) The land was subdivided and comprises a lot of not more than 300 square metres on which no permit is required for alterations or additions to an existing dwelling."

112. It is true to say that the land has been subdivided and that the relevant lot is of more than 300m2. It is also correct to say that a detached house can be built, or an existing detached house can be altered or added to, without the need of a further planning permit. While the statements of fact and law are correct, they do not amount, in my opinion, to a basis or reason for not granting the enforcement order now sought, or at any rate for one of the orders now sought.

Ground (c) : Statement of Compliance.

113. Ground (c) reads:-

"(c) The owners are not now required to comply with Condition 5 as a Statement of Compliance has been issued and the Plan of Subdivision registered."

114. It is true that a Statement of Compliance has issued and that the Plan of Subdivision has been registered. I have already explained why I do not consider that either of these events releases the owners from the requirement to comply with condition 5 and why that requirement continues until it is satisfied.

Ground (d): Estoppel.

115. Ground (d) reads:-

"(d) The Responsible Authority is estopped from alleging there is a breach of the permit."

116. This question of estoppel was not pressed with as much vigour as might have been anticipated. In any event I do not think that it can be substantiated as a ground of objection. Insofar as it relies on statements or letters prepared by officers of the Responsible Authority, the evidence is lacking that such officers had authority to waive compliance with condition 5. Indeed I think it is obvious that they could not have that authority. The means of dealing with condition 5, if it is not to be complied with, were either to appeal under s. 80 PE Act against its imposition, or to make a request to this Tribunal pursuant to s. 87 PE Act for its amendment. While it stands, it is not for someone on the staff of the Council to waive it. The Council, acting under the Subdivision Act, may have granted a Statement of Compliance without first requiring 173 agreement, but that in itself does not waive the condition. Furthermore, for the reasons already given, I do not think that the granting of the statement of compliance can be the basis for an estoppel. I have no evidence of any of the employees of the Council concerned in this aspect having authority, by delegation or otherwise, to bind the Council in these matters. Insofar as it might be said that equitable estoppel is applicable, these respondents cannot rely on equity, or take advantage of it, where they have been guilty of such reprehensible conduct and where the estoppel, if allowable, would be a means of furthering and achieving the purposes of such misconduct. I am satisfied that these respondents have misconducted themselves directly and through their agents.

117. Quite apart from any of those considerations, estoppel is not available to prevent a public authority from carrying out its public duty. Section 14 PE Act casts clear statutory public duties on the Responsible Authority to administer and enforce the planning scheme and there can be no doubt that this includes a duty to enforce conditions in a planning permit. A number of authorities were cited to me in this connection including DTR Securities Pty Ltd v Sutherland SC (1993) 79 LGERA 88, Jurkovic v Corporation of the City of Port Adelaide (1979) 41 LGRA 71, Shire of Kilmore v Dally & Anor [1989] VicRp 26; [1989] VR 314 (a decision of Southwell J in the Supreme Court of Victoria), Myer Queens Pound Garden Plaza Pty Ltd v City of Port Adelaide [1975] 33 LGRA 70, Trimboli & Ors v Penrith CC (1981) 48 LGRA 323 and others. I do not propose to discuss those cases at length here. I did discuss a number of them, and other authorities at some length in the case of City of Northcote v Alam (which should have read El Alam) [1993] 13 AATR 28. In the lengthy reasons given in that case I discussed the question of estoppel by representation (amongst other estoppel questions), particularly in relation to its application to planning and the jurisdictions of the planning tribunal and as to whether estoppel can be invoked to prevent a public authority discharging its public duties. I have taken the liberty of mentioning the case, not on the basis of it bearing weight because it contains my own opinion, but rather because of the weight of the authorities cited and discussed therein. Furthermore, there was an appeal to the Supreme Court against that decision in El Alam v City of Northcote [1994] 13 AATR 355, which appeal was unsuccessful. However, I think it is right to say that the court concentrated its attention on the doctrines of issue estoppel and res judicata. I am confident that estoppel is not available to prevent the Responsible Authority carrying out its public duty, and is thus of no avail to the respondents here.

118. I further note, by the way, that it was and is open to Mrs Hall to seek the same enforcement order applied for by the Responsible Authority. Indeed, the correspondence of her solicitors to the respondents and the Responsible Authority in February 1999 threatened to take just such action if the Responsible Authority failed to do so. Obviously no estoppel based on representations, actions or concessions would be available against her, because she has made none. Her application would have to be dealt with on its merits, and on the basis of the facts and law without any question of estoppel arising. It would be incongruous and anomalous if the Responsible Authority were obstructed in carrying out its public duty to have this public law complied with when a private citizen could take the same enforcement action in relation to the same public law without such encumbrance.

Ground (d) : Breach of Permit.

119. The fifth stated ground of objection is:-

120. There is a breach of the permit by undertaking, carrying out, and completing the development constituted by the subdivision without complying with condition 5 of the permit. Such breach is compounded, as well as evidenced by the refusal and failure to comply with requests to comply with the permit and such breach is continuing.

Ground (f) : Power to Make Orders Sought.

121. The last stated ground of objection is:-

"(f) The Tribunal does not have the power to make the orders sought."

122. I think that this is true, at this stage, in relation to the second of the orders sought. The second order sought is, according to the enforcement order application,

"That the development on the property cease and rectification works be carried out to achieve conformity with the approved plans under Planning Permit No. 97/2656."

123. It is too late to cease development of the property by means of the subdivision, inasmuch as the subdivision is now complete, and, according to my understanding of the law, cannot now be undone. However, I think this second order, where it refers to development "on" the property refers to physical building works. That is reinforced by the reference to "rectification works" and to the approved plans of permit 97/2656.

124. The subdivision permit, and condition 5 thereof, do not directly authorise or require any development in the form of the construction of buildings on the land. The intention of the condition is to control the construction of building enabled by the subdivision which would otherwise be unrestricted. The requirement of a single storey building in accordance with the approved plans of permit 97/2656 is not directly imposed, but is sought to be imposed by requiring the s. 173 agreement. Until the s. 173 agreement is entered, and perhaps also registered on the title, the legal requirement to build only a single storey house in compliance with the endorsed plans of the earlier permit does not arise. The owner respondents could have abandoned their project and decided not to act on the subdivision permit in which case the obligation to comply with condition 5 and a s. 173 agreement thereunder would not arise. I think it is correct to say that the Tribunal has no power, at this stage, to make an order in the form of the second order requested because the obligation as to the form of building works only arises from the s. 173 agreement, and not from the condition itself, and the 173 agreement has not been entered.

125. I also think that it is true to say that the Tribunal lacks power to make an enforcement order against Valedile Pty Ltd, notwithstanding that it is a company of Mr Celotto, and notwithstanding that it appears to be his building company through which he carries out building works including building works on the land. Nevertheless, it is a separate legal entity from Mr Celotto. The obligation which condition 5 casts on the other three respondents to enter the s. 173 agreement falls upon them because they were the owners of the land at the relevant time, that is to say, at the time when the obligation to comply with condition 5 by entering the 173 agreement arose. That obligation really arose when the permit was acted on or, at the latest, at the time of registration of the subdivision. The three respondents were the owners then, but Valedile Pty Ltd was not, and so far as I am aware, never has been.

126. Having said all that, none of it means that there is no power in the Tribunal to make an order in the terms of the first order sought against those three owner respondents. The first order sought is:-

"That the owners sign the Section 173 Agreement as required by Planning Permit No. 98/3400."

127. Mr Peak advanced some other arguments, for example in relation to s. 119 PE Act to support the view that the Tribunal lacks power, even to make this first order sought against those three respondents. However, I think it is more convenient to deal with those questions as he raised them, rather than to deal with them here.

Validity of Condition 5.

128. Although the grounds of objection did not raise the question of the validity of condition 5, Mr Peake nevertheless attacked its validity on several grounds.

Uncertainty : Time Limit.

129. He said that it was bad for uncertainty. One basis for this claim was in relation to the failure to specify a time or event before which the s. 173 agreement must be entered. I have already dealt with that question.

Uncertainty : Delegation and Amendable Plans.

130. Next he said that the condition was uncertain because it referred to a requirement of accordance with the plans of the other permit "or any amendment to the plans approved by the Responsible Authority". He said that this was uncertain, and also an unlawful delegation.

131. I do not think that the condition is invalid for uncertainty in these respects. The delegation of approval of amendments to plans is from the Responsible Authority granting the permit to itself. It would be its own delegate. In any event, doubts that might previously have existed in relation to the validity of conditions on the basis of certainty or delegation where they require something to be to the satisfaction of the Responsible Authority or approved by the Responsible Authority have been resolved by s. 62(2)(a) which gives specific statutory authorisation to such provisions. Mr Peake referred to ss. 72-73 and 62(3) as possible means of amendment, but those provisions are available, because of their presence in the statute, in relation to all permits and permit conditions. In any event, the amendments available by that means are very restrictive, in relation to s. 72 by the provisions of s. 73, and in relation to s. 62(3) if the Tribunal's decision in Cade v Yarra CC & Jopsal Pty Ltd [1998] VCAT 304; (1998) 22 AATR 57 is correct in relation to that aspect. The provisions in relation to s. 173 agreements contemplate the possibility of amendments to an agreement, just as these other provisions (and s. 87) contemplate the possibility of amendments to conditions. There are proper procedures to be followed in relation to such matters with Parliament having decided upon as appropriate safeguards. I do not think that these possibilities make a permit condition or s. 173 agreement uncertain in a sense that would question their validity. In any event, I think the phrase complained of in relation to "any amendment to the plans" etc. is really indicative of what the s. 173 agreement is to contain, rather than a direct imposition of the condition itself.

Uncertainty: Successors in Title.

132. Mr Peake also complained that the terms of the condition do not make it clear what obligation will apply to a successor in title. Although permit conditions requiring s. 173 agreements may, and may frequently spell out that the agreement, once it is made, is to be endorsed on title and is to bind successors in title; neither of these recitals are necessary. The terms of the provisions in relation to s. 173 agreements appearing in s. 173 and the succeeding sections make it clear that, provided certain steps are followed, the Responsible Authority can have the agreement registered on the title in which case it will bind successors in title. All that is clearly intended in relation to this condition, but it can all be effectively carried out in accordance with the provisions of the Act without the intention to do so being recited in the condition.

Does the Condition Relate to the Permission Granted?

133. Next Mr Peake challenged the condition by questioning whether the development (by which he meant the development in terms of the construction of a building, required to be in accordance with some other permit) was a matter that fairly related to the permission being granted, that is to say, the permission for subdivision. In doing this he was referring to one of the well known tests as to the validity of planning permit conditions. Those tests have frequently been discussed in tribunal and court cases in relation to planning permit conditions. I gave a fairly full examination and discussion of the authorities in relation to this subject in Rosemeier v City of Greater Geelong (No. 1) [1997] 20 AATR 86. These tests include that the restriction imposed by the condition must relate to a planning matter or matter of planning policy, or at any rate have that effect and must relate to the permission being granted. The permission being granted in this instance was permission for a subdivision. It is, I think, clearly the case that a Responsible Authority has a right and a duty to consider the implications of any planning permit that it grants, including a permit for subdivision. It can and should look at the ramifications of such a permission and consider what further use or development the permission will enable. It can and should consider the implications, in terms of the attainment of sound town planning, of what the permit will enable. This frequently involves a consideration of what future development, in terms of the construction of buildings, will incidentally be enabled, without the need for further permission, by the granting of a planning permit for subdivision. Some authorities to this effect were cited. I note also that Mr Peake conceded that point in argument in another recent case in which he appeared before me. That was the case of Tee & Adis v Boroondara CC and Charnley Glen Pty Ltd (unreported Review Nos 1999/49583 & 1999/66882. In my opinion it was very relevant to the subdivision permission being sought here to consider whether the granting of a permit would enable a two storey house on the site thus overcoming or contravening or getting around the decision previously made by the Tribunal on the merits of whether such a house should be allowed on that land. It was, in my opinion, relevant, responsible and appropriate, having seen that the subdivision permission would enable that result, for the Responsible Authority to impose such a condition as number 5 so as to avoid that undesirable planning result. It was, after all, not just the Responsible Authority's opinion that such a result was undesirable. It was primarily the decision of the Tribunal in the previous case. It would hardly be appropriate for the Responsible Authority to grant a subdivision without such a condition thereby aiding a strategy that by indirect means would have the effect of defeating the Tribunal's determination.

Voluntariness of S. 173 Agreement.

134. Mr Peake also attacked the condition on the basis that it required "an agreement". An agreement, he says, necessarily implies an element of voluntariness. It is repugnant to the notion of an agreement that the respondents are compelled to enter it.

135. This sounds very plausible, but it is misleading. There is certainly an essential element of voluntariness in the granting of the subdivision permit subject to its condition 5. Even after the permit has been granted and issued, nothing compels the owners to act on it. Many permits are granted and are not acted on. It is extremely likely that in some instances that is because owners or permit applicants find the project no longer attractive having regard to one or some of the conditions imposed. Nothing compelled the owners to act on this permit. Their element of voluntariness arises from their ability to choose to do so or to choose not to do so. However, if they choose to act upon it, then they must act upon it in compliance with its conditions. Even that statement is subject to the qualification that if they considered the condition to be invalid, unreasonable or inappropriate, they had their opportunity to appeal under s. 80. Having not applied for such a review, not sought an amendment of the permit and yet acted upon it by lodging the plan of subdivision it allowed and having that plan of subdivision registered, they elected to incur the requirements of all the conditions including condition 5. Condition 5 required them to enter a 173 agreement. If they had disputes about the form of the agreement, there are even provisions to enable such disputes to be determined. If they are now compelled to enter the agreement, it is not because they had no choice in the matter, but rather because they chose to act on the permit.

136. If Peake's argument was correct on this voluntariness point it would defeat the purposes of s. 62(2)(f) and s. 173 and subsequent provisions. You have your right to negotiate the agreement and you have the right to have disputes in relation to it settled by a body outside the parties to the agreement but if you proceed with the subdivision (before or after those things are settled) then you bind yourself to the extent of the condition. It is quite common for permits to contain conditions requiring agreements to be entered with various utility authorities for the supply of water, power, sewerage and the like. It is also not unusual for conditions to require the entering of agreements in relation to the provision of levies or off-site road works and the like. No one is compelled to enter such agreements, but they need to do so if they want to rely on their permit. The notion of agreements under s. 173 is to enable there to be control over future use and development and other matters mentioned in the provisions and referred to above. If the applicant does not or will not enter an agreement required by condition with VicRoads or a water supply authority or whatever it may be, then they cannot proceed to act on the permit and if they do act on the permit, without making the required agreement, then they are in contravention of the agreement. It is all clear enough, and cannot really be said to be invalid on the basis of repugnance to the notion of an agreement.

Four Peake Propositions.

137. In paragraph 4.1 of part 4 of his written submissions dealing with "legal submission" Mr Peake said:-

"4.1 The relevant issues to be determined in this application are:-

(1) Was condition 5 of the permit ever enforceable?

(2) Can the owner of the land be ordered to enter into an agreement under s. 173 of the Planning and Environment Act 1987?

(3) If so, does the obligation to enter into that agreement survive the issue of a statement of compliance and registration of the plan of subdivision?

(4) If it does, as a matter of discretion should an order be made against Ms Sullivan, as the now owner of the land and the person who will alone suffer the hardship that will arise from the partial demolition of her house and the subsequent waste of a substantial part of her life savings?"

138. I consider that the answers to these questions are:-

(1) Yes.

(2) In circumstances where the permit has been acted upon, yes.

(3) Yes, there is no reason why not, and compliance is as important as it ever was.

(4) Yes, having regard to all the circumstances of the case and the history of the matter the joint venturer respondents, including Ms Sullivan, are in a very poor position to seek an exercise of discretion in their favour to relieve them from obligations that are designed to protect the amenity of neighbours, the neighbourhood and the public interest.

Scope of the Power to Make Enforcement Orders, s.114 PE Act.

139. Mr Peake refers to the provisions in relation to enforcement orders found in Division 1 of Part 6 of the Planning and Environment Act commencing at s. 114. In his paragraph 5.2 he says:-

"5.2 The Tribunal only has power to make an enforcement order if the use or development of the land contravenes or has contravened or, unless prevented by an enforcement order, will contravene the Act, a Planning Scheme, a condition of a permit or an agreement under s. 173."

140. In this case the development concerned is the subdivision of the land. Such development, without complying with condition 5 of the permit, is a clear contravention of that condition of the permit.

141. In this connection he was referring to s. 114(1) PE Act which provides:-

"(1) A responsible authority or any person may apply to the Tribunal for an enforcement order against any persons specified in sub-section (3) if a use or development of land contravenes or has contravened, or, unless prevented by the enforcement order, will contravene this Act, a planning scheme, a condition of a permit or an agreement under s. 173.".

142. For the above stated reasons that subsection is satisfied. Subsection 3 goes on to provide:-

"(3) An enforcement order may be made against one or more of the following persons -

(c) any other person who has an interest in the land;

(d) any other person by whom or on whose behalf the use or development was, is being, or is to be carried out."

143. Ms Sullivan comes within subsection (3) on the basis that she is now and was at the time that the obligation to enter the agreement pursuant to the condition arose, the owner of the land. I consider that the relevant time to be considered in relation to making an enforcement order based on a contravention which, like this one, has been committed, is the time when the contravention occurred. The obligation did not arise before the grant of the permit, but it certainly did arise, at the very latest, at the point of registration of the subdivision. It probably really arose at some point before that, but that does not matter because at all times between the grant of the permit and the registration of the subdivision, Ms Sullivan, Mr Celotto and Novamero Pty Ltd were the joint owners of the land. I think it is open and appropriate to make an order requiring compliance with condition 5 against each of them.

144. Furthermore, and in any event, they are all caught by s. 114(3)(d). They are each of them persons by whom or on whose behalf the development was carried out.

Scope of the Power to Make Enforcement Orders, s.119 PE Act.

145. In his paragraph 5.3 Mr Peake said:-

"5.3 The orders that the Tribunal may make are set out in section 119 of the Act. It is submitted that the Tribunal does not have power to order a person to enter into an agreement, which by its nature, is a voluntary act."

146. I have already dealt with the voluntariness argument. However, I think it is relevant to refer to the terms of s. 119 PE Act. That section reads:-

"119. What can an enforcement order provide for?

(i) the use or development which contravenes or has contravened or will contravene this Act or the planning scheme, permit condition or agreement; and

(b) may direct any person against whom it is made to do any one or more of the following-

(i) to stop the use or development within a specified period;

(iii) to maintain a building in accordance with the order; or

(iv) to do specified things within a specified period-

(A) to restore the land as nearly as practicable to its condition immediately before the use or development started or to any condition specified in the order or to any other condition to the satisfaction of the responsible authority, a Minister, public authority, municipal council, referral authority or other person or body specified in the Order; or

(B) to otherwise ensure compliance with this Act, or the planning scheme, per condition or agreement under section 173."

147. In terms of s. 119(b)(i) and (ii), it is too late to make an order to stop the development or to order that it should not start, inasmuch as the development has now been completed. Paragraph (iii) and sub-paragraph (iv)(A) are not really relevant in present circumstances. However, pursuant to s. 119(b)(iv)(B) the Tribunal may make an enforcement order directing a respondent to do specified things within a specified period to ensure compliance with, amongst other things, a permit condition. That is a clear enough power and I propose to exercise it.

Condition 5 Only Requires s. 173 Agreements to be Entered.

148. Mr Peake goes on to point out that the condition does not, of itself, limit the development of the subject land (by which he means development in the sense of constructing a building) but only requires an agreement to be entered into to that effect. The condition, he points out, does not purport to prohibit the commencement of the development until the agreement has been entered into.

149. He is perfectly correct in saying that the condition only requires the entering of an agreement and that is all I propose, at this stage at any rate, to order. However, as I have said repeatedly, the condition does implicitly prohibit the commencement of the development by way of subdivision without compliance with the condition or the entering of the agreement. The contravention that has been made out is not the commencement of building works, but rather the commencement and completion of the subdivision.

Is the Responsible Authority Debarred by having made an Election?

150. In paragraph 5.11 Mr Peake says, amongst other things,

"In this case, the Responsible Authority has chosen, rightly or wrongly, not to require the agreement to be entered into. The Responsible Authority having made that choice, and the respondents having acted on the permit to completion, by registration of the plan of subdivision, the choice made by the Responsible Authority cannot be undone by the Tribunal."

152. This really sound like an equitable estoppel argument dressed up in other words.

151. It might truly be said in terms of the Responsible Authority, or its officers, have chosen, wisely or unwisely, not to require the agreement to be entered into prior to the issuing of a statement of compliance. However mistaken or misled officers may have been in making that choice it is not at all the same thing as choosing not to require the agreement at all. I do not think that officers had the authority to make a choice of that sort, or the Responsible Authority either, for that matter, although I do not think that the evidence indicates that the Responsible Authority or an authorised delegate of the Responsible Authority ever did so. It is true that the choice in fact made, to issue the statement of compliance without the agreement, cannot be undone by the Tribunal. However the Responsible Authority, and Mrs Hall, have sought and now seek compliance with the condition, and that can be ordered by the Tribunal.

Is Condition 5 "Spent"?

152. In part 6 of his written submissions, sub-headed "Current Status of the Permit and Condition" Mr Peake recites a number of propositions most of which are true in themselves. However, I do not think that they, separately or taken together justify his submission in paragraph 6.2 "that the force of condition 5 of the planning permit is spent upon registration of the plan of subdivision, if it was ever enforceable". I do not see that there is justification for that claim or that the recital of propositions in part 6 which, as I have said, are, for the most part, true in themselves, lead to that. On registration the permission to subdivide might be said to have been acted on, achieved, even exhausted, but that does not mean that conditions seeking to control the future development of the land so subdivided are invalid; for example, conditions imposing building envelopes are valid enough. Likewise, if the s. 173 agreement had been entered and registered on the title, it would continue to be effective notwithstanding that the plan of subdivision has been registered and the purpose of the permit has, in that sense, been achieved and fulfilled. I do not see that this is any different in the circumstances where the entering of the agreement is still outstanding. If and when the agreement is entered it may be possible and appropriate to enforce it by means of a prosecution, or a further enforcement order or an injunction. It is not necessary to determine upon that at this stage. It may or may not arise at some later time. On the basis of what has been put forward so far, I see no reason why an agreement entered in the future might not be registered on the title. However, that again is a matter that can be considered if it arises.

Does Condition 5 Impose a Perpetual Rigidity of Development Form?

153. The point was also raised that it was an objection that the condition and agreement might have the effect, in perpetuity, of requiring only a single storey dwelling in accordance with the plans of permit 97/2656. The set up sought to be achieved by the condition is not as immutable as that. There are provisions whereby agreements might be amended.

Discrepancy in Officer's Report.

154. Attention was also drawn to a discrepancy between the officer's report and the permit granted. The officer's report had suggested a condition 5 that referred to requiring s. 173 agreement in relation to Lots 1 and 2 rather than Lot 3. I consider this to have been obviously a slip in the drafting of that recommendation, a slip that was corrected by the Responsible Authority or its delegate before the permit was issued. As I have observed, the evidence does not disclose whether the decision to grant the subdivision permit was in fact made by the Responsible Authority or by some delegate. In either event, it was quite appropriate that whoever undertook that duty should not have felt itself bound by the recommendation. It is the responsibility of the Responsible Authority, or its delegate, to make the decision, and it, he or she is quite entitled to depart from the recommendation. That is true as to a decision on the merits and also in relation to an accidental slip of expression.

Discretion

155. In part 7 of his written submissions Mr Peake refers to a number of considerations which he urges should be taken into account in exercising a discretion in favour of his client not to make an enforcement order. I have considered all these matters carefully. I find some of them to be exaggerations. I do not think it is necessary to deal with them all seriatim. They do not, singly or taken together, persuade me that there is a good basis for such a discretionary decision. Aspects of a number of Mr Peake's propositions in this section have already been discussed. I think it is sufficient to confine myself to several comments.

156. In paragraph 7.2 Mr Peake assumes that if an agreement is executed proceedings will be brought seeking demolition of the second storey of the dwelling. That may be so, but if so, those proceeding can be considered on their merits when they arise.

157. I do not accept the estimate of $150,000.00 as the loss to be sustained by Ms Sullivan if the house is eventually to be rectified so as to accord with the endorsed plans of the earlier permit. I think the figure mentioned is an exaggeration, but I do accept that the costs and loss involved would be considerable. As no such order is contemplated at this stage I do not think that aspect is currently relevant. It can be considered if and when it arises.

158. In paragraph 7.4 reference is made to the well known case (in planning circles) of Thorne & Ors v Doug Wade Consultants Pty Ltd & Ors [1985] VicRp 48; (1985) VR 433. That case is only relevant, for the purpose it is referred to in paragraph 7.4 as confirming that there is a discretion in relation to whether demolition should be required, even where the extensions concerned were illegal and carried out on an invalid permit. I have no doubt that such a discretion exist under s. 114 and 119, without need to refer to the Doug Wade case. However, it does need to be noted that the court in that case found that the respondents there had acted innocently. That is hardly my finding in the present case.

159. Furthermore I do not at all accept the suggestion conveyed in paragraph 7.5 that the Responsible Authority has in some way denied the owners their opportunity of appealing, against the condition under s. 80 PE Act.

The Position of Mr Celotto and Novamero Pty Ltd.

160. I have sought to gather up and deal with the various legal issues raised in the grounds of objection, Mr Peake's oral submissions and his written submissions. Mr Laird did not call any witnesses or present evidence, but he adopted the submissions of Mr Peake and presented some brief oral and written submissions on behalf of his clients in relation to their particular situation. He pointed out, in particular, that although Ms Sullivan was and still is an owner of the land his clients Mr Celotto and Novamero Pty Ltd have ceased to be owners. He submitted that because of this no order can be made against them. I have already dealt with that matter and also with the situation of Valedile Pty Ltd.

161. He sought dismissal of the application against each of his clients and also sought an order for costs. For reasons already given I will not make an order against Valedile Pty Ltd but will do so against Mr Celotto and Novamero Pty Ltd. I refuse the application for costs in relation to each of Mr Laird's clients noting that, although no order is made against Valedile Pty Ltd, it is really a creature of Mr Celotto. Furthermore, I am not satisfied that it was unreasonable to join that company in the uncertain state of the evidence known to the Responsible Authority at the commencement of the proceedings. In any event, I do not think that the costs have been added to in any material way by the inclusion.

Trespass.

162. In his oral submissions Mr Laird suggested that to make an order against his clients might call them to trespass on Ms Sullivan's land or destroy part of it, although they are no longer owners and have no lawful rights or interests in it. The order I propose to make requiring entering the agreement does not occasion trespass or destruction. I do not choose to speculate at this stage whether any future proceedings, if they are brought, would raise any problems of this sort. Sufficient unto this case are the problems thereof, and these other problems, if they exist, can be dealt with when they arise.

163. Mr Pitt, in supporting the application of the Responsible Authority for an enforcement order, sought one requiring the entering of the required s. 173 agreement. He took the view, correctly in my opinion, that it is not open at this stage to make any order in relation to modifications to the building structure. He seeks the making of the order in relation to the agreement and that the enforcement order application should otherwise be adjourned. I think that is the appropriate course and I will make an order and otherwise adjourn the application to a date to be fixed. However, if a further order is sought at some later stage consideration should probably need be given as to whether a new enforcement order application should be made.

164. I anticipate that some amount of time might be required in relation to complying with the order that I propose to make. In the circumstances I will order that the condition by complied with and the agreement entered within six weeks from the date of the enforcement order.

165. I note that s. 121 PE Act empowers the Tribunal to amend an enforcement order, so that it is available if it should become necessary, for example if the six weeks should prove to be insufficient. I have also noticed that a new planning scheme has come into force since the hearing. I do not think that this circumstance changes the case in any material way. However, if it is thought that it does change the situation, that may be a basis for seeking amendment or cancellation under s. 121.

Costs of Responsible Authority and Mrs Hall.

166. The Responsible Authority and Mrs Hall have applied that the Respondents should pay their costs. I think it is appropriate that the Respondents who are or have been owners of the land should be ordered to pay those costs. I have no submissions, at this stage, as to the quantum of costs or as to how such costs should be assessed. I think it is appropriate to reserve the question of costs at this stage.