Victorian Civil and Administrative Tribunal|2000-07-31

Bethune & Ors v Baw Baw SC Order) [2000] VCAT 1630 (31 July 2000)

RESPONDENTS: Clayline Pty Ltd and Charles Wallace

1. The matter is listed for hearing for two days before a legal member and a member experienced in drainage matters on 18 and 19 September 2000.

* Is extended in operation until the determination of this application.

4. The remaining Respondents must give a statement of grounds and particulars on which they object to the application and wish to contest the application within 21 days.

5. The matter is referred to mediation on 23 August 2000 for 1 day pursuant to Section 88 of the Victorian Civil and Administrative Tribunal Act 1998. Most parties have consented to a mediation and the Tribunal considers that a mediation is likely to be successful.

6. The Tribunal gives the following directions in relation to the mediation:

a) A natural person who is a party to the proceeding must attend the mediation either in person or by a representative who has authority to settle the proceeding on behalf of that party;

b) Each body corporate which is a party (including a Responsible Authority, referral authority or statutory authority) must attend the mediation by a representative who has authority to settle the proceeding on behalf of that party;

c) If the Application or permit application subject to the proceeding was made in the name of a person as agent or consultant for a principal, the principal must either attend the mediation in person or by a representative who has authority to settle the proceeding on behalf of the principal;

d) Each party should commence the mediation with a short written statement briefly describing the proceedings and setting out the issues which that party considers are in dispute. [A form of statement for the purposes of this paragraph is set out in schedule 2 of Practice Note Planning List 1.];

At the commencement of a mediation, a person representing a party must produce to the mediator and the other parties a written authority from that party to settle the proceeding.

Mr David O'Brien of Counsel instructed by O'Halloran and Davis, Solicitors, for the Applicant.

Mr G Peake of Counsel instructed by Rennicks, Solicitors appeared for Clayline Pty Ltd.

Mr Ian Murray of Mallesons Stephen Jaques, Solicitors, appeared for Baw Baw Shire Council.

1. At the hearing the parties made submissions, produced plans of the roadwords and drainage works approved by the Responsible Authority and other documents. An indication was given to the Tribunal from the bar table of evidence as to detriment to the Applicants of the alleged breaches of the permits and from Mr Murray of the opinion of Council's Engineers on the drainage arrangements.

2. In relation to Condition 3(iii) I do not consider a prima facie case for the breach of this condition has been established as the drainage plans showed pipe drainage and had been approved by the Responsible Authority.

3. I find there is a prima facie case that breaches of the Planning Permit have occurred in relation to Condition 3(v) which reads as follows:

"Provision of low flow piped drain (recurrence intervals 5 years) through reserve to natural water course (Whisky Creek) to drain proposed road/subdivision 1 in 100 overflow open earth drain."

4. The material produced to the Tribunal is that about 60 metres of Millennium Court and the subdivision above it is not drained in this manner but rather drained to road pits at the entrance to Surman Court outside the land subject to the permit and thence to an open drain along the uphill side of Surman Court and thence through a reserve to Whisky Creek.

5. The prima facie interpretation of the condition is that all of the roads and subdivision must be drained in the way described by the condition and that the condition contemplates that it be drained either through the subject land to Whisky Creek or along an adjacent road reserve (the Waddell Road reserve). The condition does not in my view contemplate drainage in an open drain down Surnam Court.

"Surman Court traffic to have priority ie through traffic movement. The proposed road is to form the single leg of a "T" intersection."

7. I accept Mr Peake's submission that there is some vagueness about the meaning of this condition although Mr O'Brien gave an indication of his clients views of its meaning which could be implemented. However what has been constructed appears to have no relationship to the condition. Surman Court is not given priority by virtue of through traffic movement and Millenium Court is not the "single leg" of a "T" intersection. Accordingly I find there is a prima facie case that this condition is not complied with.

8. It is not contested that Condition 7 which requires widening to be carried out at the corner/intersection of Waddell Road and Surman Court to cater for the extra traffic generated by the subdivision has not been complied with.

9. This breaches appear to have been admitted to some extent in correspondence from the Council which has had extensive discussions with the developer. Whatever the engineering or merits of the drainage and road proposals approved by Council, the Councils and the developer may not have followed the proper process to have the changes approved. Appropriate ways are either through a new permit application or an application under Section 87 of the Planning and Environment Act. Either of these would require that persons affected, namely the residents of Surman Court, which was referred to in the permit, be given notice of the application to amend the permit.

10. Neither the Respondent or Council submitted in this hearing that it would have power to make an amendment to the permit to give affect to the proposed changes under Section 73 of the Planning and Environment Act.

11. Mr Peake submitted to the Tribunal that there was no need for the extension of the interim enforcement order because the conditions on the permit would remain in force notwithstanding the completion of the subdivision works and the issue of a certificate of compliance and registration of the plan of subdivision. However it is my understanding that in a development permit the permit conditions cease to have effect once the development is completed. There appears to be a conflict of authorities on this issue (see decision 1999/011419 Bayside City Council v Chantel and Others of Mr Byard dated 3 March 2000 and 1999/041589 City of Whittlesea v Jala Pty Ltd Mrs Komesaroff heard in November 1999. Mr Peake with good intentions submitted to the Tribunal that his clients would not take the point at the hearing of the application, but the law should prevail and if an adverse interpretation is in fact argued by Council or if the Tribunal on its own account adopts the adverse interpretation, Mr Peake's assurances would be to no avail. This Tribunal is not prepared to risk the Applicant's rights by letting the matter proceed to a hearing without continuing the interim order. Mr Peake's proposal for an agreement under the Subdivision Act or a performance bond would require further negotiation and the amount of bond monies mentioned fell short of the rough estimate of the drainage works leaving aside any alteration to the roads.

12. Accordingly in the Tribunal's view it is appropriate to extend the operation of the enforcement order subject to the deletion of paragraph (b) until the determination of this matter.

13. I also consider it has appropriate that the Applicant should not be required to give an undertaking to damages pending the determination of this matter. What is sought from the Tribunal is a remedy of an equitable nature. The conduct of the Council and the Respondents, however well intentioned, has had the affect of cutting the Applicants out of proper consultation in the planning process and forcing them to take these proceedings. In such circumstances where both the developer and Council have not followed due process it is an appropriate exercise of discretion for the Tribunal not to require an undertaking for damages in this case.

14. Whether the Council has power under Sections 202 - 207 of the Local Government Act to have the ultimate say in determining the roadworks in Waddell Reserve may be a relevant matter for the hearing, but the matter influencing the Tribunal in this hearing is that Council has without requiring the appropriate procedures for amendment of the Permit has approved different road and drainage arrangements to those required by the Permit issued by hits predecessor.

14. Mediation has been suggested to the parties and instructions have been received that most parties agreed to mediation. Accordingly the matter will be referred to mediation and dates for mediation and a hearing are fixed in the Order made.

Civil and Administrative Tribunal Act 1998

Bethune & Ors v Baw Baw SC Order) [2000] VCAT 1630

At a glance

Court

Decision date

Source

Judgment (32 paragraphs)

Bethune & Ors v Baw Baw SC Order) [2000] VCAT 1630 (31 July 2000)

Parties

Legislation Cited (1)