Mr Mathew Sherwell, Sherwell Harrison Munro Lawyers

Ms Carley Robertson of Counsel, instructed by Level Playing Field Lawyers

1. Stonnington City Council (in these reasons, the Council) issued permit 0330/14 (the permit) on 7 May 2015 to construct three dwellings (being three double-storey townhouses) on the subject land.
2. The construction of the three dwellings is nearing completion. The extent of completion is a relevant issue in this proceeding and I will refer in more detail to this matter later in these reasons.
3. Ms Elliott owns and occupies a detached single-storey dwelling on abutting land to the south at 17 Rotherwood Drive. She has requested the Tribunal to direct the Council to cancel the permit. In her request, the facts on which she relies are set out in 28 pages of single-line spacing text plus 40 attached documents amounting to several hundred pages.
4. Ms Elliott is not legally trained. The facts on which she relies includes many contentions regarding the problems she has experienced with the construction of the three townhouses. She has included many facts and contentions related to adverse effects without knowing to what extent those facts or contentions may be relevant to her request.
5. Ms Elliott did not and has not sought an order to stop the development allowed by the permit. Since her request was filed on 30 August 2019, the construction of the townhouses has continued.
6. Thinh Khac Nguyen and Thuy Thanh Thi Nguyen (the Nguyens) are the current owners of the land, are therefore the permit holders and have the benefits of the permit.

1. In her request, Ms Elliott states that if her request is successful, the outcome she seeks is the demolition of townhouses 1 & 3 and, if sought to be re-built by the Nguyens, those townhouses built at an unspecified lower floor level 'so as to not impact on [her dwelling] as it currently is doing'.[3]
2. To understand Ms Elliott's preferred outcome, it suffices to observe that:
   • (a) 17 Rotherwood Drive is on lower land than the subject land. The maximum difference is around 3 metres.
   • (b) Townhouse 3 is the townhouse located closest to the boundary with 17 Rotherwood Drive and towards the rear of the subject land. It has been constructed, in part, on land raised above the level of the land before construction started. The Council submits this was carried out as part of the shaping of the surface of the land to create flatter sites for each townhouse. I will be referring more to land levels later in these reasons.
3. By cancellation alone, Ms Elliott's outcome would not be realised. For example, if the permit is cancelled, the Nguyens could make a fresh application for a permit to allow the development as currently being constructed and it would be for the Council to decide to grant or refuse a permit.

1. Following a practice day hearing on 1 November 2019, the Tribunal referred the request to a preliminary hearing to consider Ms Elliott's standing to bring her request, the delay in bringing the request and whether the development is substantially complete.
2. In accordance with orders made after the practice day hearing, the Council, the Nguyens and Ms Elliott filed outlines of submissions. I have now considered:
   • (a) The oral submissions at the hearing.
   • (b) The documents tendered at the hearing.
   • (c) The filed written submissions, including two submissions filed by Ms Elliott of 49 pages and 24 pages.
   • (d) The extensive documents Ms Elliott attached to her request.

1. My ultimate findings are that Ms Elliott does have standing to request cancellation of the permit but that the request should be refused because Ms Elliott did not make the request as soon as practicable after she had notice of the facts relied upon in her request.
2. It is unnecessary to determine the merits of Ms Elliott's request. Nonetheless, the Council, the Nguyens and Ms Elliott made lengthy submissions about the merits. My ultimate findings are supported by my observations about the merits of the request. It is therefore unnecessary that the request proceed to a further hearing.

1. The relevant parts of the history of the permit may be summarised as follows.
2. On 2 April 2015, the Council issued a notice of decision to grant a permit.
3. On 7 May 2015, following the non-lodgement of any application to the Tribunal by an objector to review the Council's decision, the Council issued the permit.
4. On 17 December 2015, the Council endorsed plans under conditions 1, 3 & 5 of the permit.
5. On 21 June 2016, the Council amended the permit by secondary consent. According to the Council, the amendments related to changes to the front fence, external finishes and landscaping.
6. In March 2017, the construction of the townhouses started.
7. On 17 October 2018, the Council again amended the permit by secondary consent. I will refer the nature and circumstances of the amendments later in these reasons.

1. The relevant provisions for the purposes of this hearing are sections 87, 88, 89, 90 & 90A of the Planning and Environment Act 1987 (the PE Act). It is unnecessary to set these sections out in this part of the reasons. I will refer to the relevant parts of those sections throughout the reasons.

1. The provisions of section 89(1) of the PE Act determine whether Ms Elliott has standing to bring the request. She must clear four hurdles.

1. The first hurdle is that Ms Elliott must have objected or was entitled to object to the issue of the permit.[4] She did not object. Notice of the application was given to her mother as the owner of the land at 17 Rotherwood Drive and her mother objected. Ms Elliott helped her mother prepare the objection. At the time, Ms Elliott occupied the dwelling at 17 Rotherwood Drive with her mother. As an occupier, Ms Elliott was entitled to object. Ms Elliott clears the first hurdle.

1. The second hurdle is that Ms Elliott must believe she should have been given notice of the application for the permit and was not given that notice.
2. Notice was given to Ms Elliott's mother. Ms Elliott concedes her mother showed her the notice and that Ms Elliott discussed the application with her and that Ms Elliott prepared the objection ultimately sent in her mother's name. Ms Elliott had constructive notice.
3. Ms Elliott believes she clears the second hurdle but this is on the mistaken belief that the relevant notice was the Council's notice of decision to grant a permit. Ms Elliott believes she did not receive that notice. Based on correspondence tendered by the Council at the hearing, I find that in any event Ms Elliott's mother was given that notice. Accordingly, Ms Elliott does not clear the second hurdle. This is not fatal because if Ms Elliott clears the third hurdle, she does not lose standing.

1. The third hurdle is that Ms Elliott must believe she has been adversely affected by either a material mis-statement or concealment of fact in relation to the application for the permit, any substantial failure to comply with the conditions of the permit, or any material mistake in relation to the grant of the permit.[5]
2. The Council, the Nguyens and Ms Elliott made lengthy submissions about:
   • (a) whether there had been a relevant mis-statement of concealment or fact and whether it was material;
   • (b) whether there had been failures to comply with permit conditions and whether they were substantial;
   • (c) whether there had been a relevant mistake in relation to the grant of the permit and whether it was material; and
   • (d) whether Ms Elliott had been adversely affected by any one or more of the above.
3. These are ultimately matters for the merits of the application. What is relevant for standing is whether Ms Elliott has a belief of being adversely affected by one of them. There must be a reasonable basis for that belief.
4. Although the third hurdle is a subjective one, it has objective elements. To illustrate that point, if a belief is based on a misapprehension of what is the relevant permit, a belief would not have a reasonable basis and the relevant hurdle would not be cleared.
5. It suffices to state that based on Ms Elliott's request and her submissions, I find she has the necessary belief. Accordingly, Ms Elliott clears the third hurdle.

1. The fourth hurdle is that Ms Elliott's request must be made in accordance with the regulations.[6] Relevantly, the Planning and Environment Regulations 2015 (the PE Regulations) require Ms Elliott to include specified information in her request.[7] Compliance with this requirement is not in dispute. Ms Elliott clears the fourth hurdle.

1. I do not have the power to cancel the permit if the operations relating to the construction of the three townhouses have been completed.[8]
2. The construction of the three townhouses has not been completed. However, based on recent photographs of the subject land tendered by the Nguyens at the hearing and based on my inspections on 16 January 2020, the buildings and works allowed by the permit are substantially completed.
3. The townhouses are at a 'lock up' stage. The walls, roofs, windows and external doors of each dwelling are complete. The dwellings are at a 'fixing' stage. Some internal painting, benchtop installation, garage door installation, plumbing, air-conditioning and power remains to be completed.
4. On one view, the 'construction' of the three dwellings is complete. A permit is not required to install services and complete internal works. In that sense, the construction authorised by the permit does not require completion of those services and internal works.
5. This leads to consideration of whether the requirement that the 'operations' must be complete connotes a wider ambit that the construction be complete. This is a difficulty because the Council, the Nguyens and Ms Elliott were unable to assist with any authorities of what constitutes 'operations' for the purposes of the requirement.
6. 'Operations' are not defined in section 88 or elsewhere in the PE Act. The legislature must have intended a meaning different from 'construction or carrying out of buildings and works'. I am not assisted by any evidence tendered by the parties relating to the purpose of section 88.[9]
7. Fortunately, I do not need to trouble myself with this difficulty. It suffices to find the construction of the buildings and works are not complete. The permit requires various works to be completed, including construction of a vehicle accessway and retaining walls and carrying out of landscaping works. Those works are incomplete.
8. Accordingly, I have the power to cancel the permit.

1. I may refuse to consider Ms Elliott's request if I am satisfied that she did not make it as soon as practicable after she had notice of the facts relied upon in support of her request.[10]
2. Ms Elliott made her request on 30 August 2019.
3. Before deciding whether to refuse, I must make findings about:
   • (a) The facts on which Ms Elliott relies.
   • (b) When Ms Elliott had notice of those facts.
   • (c) Whether Ms Elliott made the request as soon as practicable after she had notice of those facts.

1. Identifying the facts on which Ms Elliott relies is no easy task given the lengthy narrative form of her request that refers to a myriad of adverse effects she claims she has suffered.
2. In the interests of finding the key underlying fact from which most claims arise, it is the finished floor level of townhouses 1 & 3. Arising from that fact are the concerns about the changes to the levels of the subject land, the levels of the accessway, drainage issues, the overall height of the townhouses and the overall impact on 17 Rotherwood Drive.

When did Ms Elliott have notice of the facts?

1. Ms Elliott does not seriously dispute the Nguyens' contention that the existing dwelling on the subject land was demolished in January 2017 and construction of the townhouses started in March 2017. This concession is fair because Ms Elliott was living at 17 Rotherwood Drive at all relevant times.
2. As I have stated, Ms Elliott contends she never received the Council's notice of decision to grant a permit. The Nguyens contend that, even if it was not received (which is denied), Ms Elliott had notice of the permit in August 2017. They rely on Ms Elliott's petition-form letter to the Council in August 2017 objecting to the loss of an opportunity to review the Council's decision. Ms Elliott does not dispute that she can be held to be aware of the permit from that date.
3. I do not accept the Nguyens' contention that Ms Elliott had notice of the facts relied on in her request in August 2017.
4. In her application, Ms Elliott states 3 October 2017 is the date on which she first become aware of the facts she relies on.
5. It is apparent that Ms Elliott engaged vigorously with various officers of the Council soon after construction started, if not sooner, with various complaints relating to raised ground levels on the subject land and resulting drainage impacts and building/fence impacts on Ms Elliott's land.
6. Ms Elliott specifies 3 October 2017 as the relevant date because she contends that is when the Council informed her that the townhouses were being constructed not in accordance with the permit. In making that contention, she relies on correspondence to the builder from the Council's planning enforcement staff, a copy of which was given to her. The correspondence states:

[S]ubstantial earthworks involving excavation and new levels has taken place which are not indicated on the approved plans. These works have the potential to impact on [Ms Elliott's land].

You are required to lodge amended plans indicating the earth works, pre-existing levels prior to the works and proposed future levels of site. In addition, such plans are to show Natural Ground Levels of the site which are not indicated on the endorsed plans as submitted.

1. The Council attached a planning infringement notice (the PIN) to the Council's correspondence requiring action within 14 days consistent with the correspondence.[11]
2. Ms Elliott continued to express concern about the construction of the townhouses and engaged with Council staff after 3 October 2017.
3. After the issue of the PIN, it is apparent that the Council was dissatisfied with the builder's response to the PIN. On 20 March 2018, the Council applied to the Tribunal for an enforcement order to require compliance with the permit.
4. On an unspecified date in 2018, the builder applied for a secondary consent amendment to the permit as required by the PIN.
5. On 17 October 2018, the Council amended the permit under secondary consent with the amendments described by the Council as changes to elevations to show site levels in relation to neighbouring property levels, changes to driveway levels, and changes to the southern retaining wall and a new fence within the southern side boundary.
6. On 29 October 2018, the Council's lawyers wrote to Ms Elliott to state, in effect, all her complaints had been investigated and resolved to the Council's satisfaction and the matter is 'completed and finalised'. The correspondence stated:

[The Council] has investigated all of the matters you have identified with the development at 17 [sic, 19] Rotherwood Drive, Malvern East.

[The Council] commenced an application for an enforcement order against the builder in relation to failures to comply with [the permit. The Council] has resolved those contraventions with the builder and new plans were submitted for approval which resolved the landscaping and drainage of the land.

Accordingly, as a result of the approval of the amended plans, the enforcement order will be withdrawn. Further, the investigation and rectification of the land at 17 [sic 19] Rotherwood Drive, Malvern East has been completed and finalised.

1. On 16 January 2019, the Tribunal gave leave to the Council to withdraw its enforcement order application. The Council's request for leave included:

[A]mended plans have been endorsed by Council which bring the Land into compliance with the relevant permit and, accordingly, the matter has been resolved.

1. I have referred to these events after 3 October 2017 and the Council's correspondence dated 29 October 2018 because the Council contended that, even if I were to find that Ms Elliott did not have notice of the facts on 3 October 2017, she undoubtedly had them on 29 October 2018.
2. I find Ms Elliott had notice on the date she specified in her request ie 3 October 2017. On that date, she had notice of the permit and notice that the Council's view at that time was that the levels of the land did not correspond to the levels shown in the endorsed plans under the permit.
3. This is the date on which Ms Elliott could reasonably be expected to have been aware of the finished floor levels of townhouses 1 & 3. On that date, she had knowledge of the outcome of the Council's consideration of whether the levels of the land under and around those townhouses did not comply with the permit.

1. Ms Elliott made the request on 30 August 2019, some 25 months after she had notice of facts relied on in her request.
2. As soon as practicable does not mean as soon as possible. It means as soon as it is feasible in the circumstances of the case, taking a flexible and sensible approach. It recognises, for example, that a requestor needs time to consider whether a request should be made and to seek advice.
3. Ms Elliott contends the request was made as soon as practicable because:
   • (a) It was reasonable to rely on the Council's efforts to investigate and enforce the permit and wait until that action was complete.
   • (b) Her mother's health deteriorated, leading to her death in early 2018.
   • (c) She continued to suffer emotional distress resulting from the construction of the townhouses, including fear, loss of privacy, sexual harassment, threats, bullying and trespass.
   • (d) She had insufficient funds to seek advice and make the request, caused by medical and other expenses resulting from the construction.
   • (e) Personal illness.
4. I find the request was not made as soon as practicable. While the personal distress, loss and illness are unfortunate, the second to fifth-mentioned of the circumstances Ms Elliott relies on do not excuse a 25 month delay in making the request. For example, each is not supported by independent medical or other evidence that states the circumstance is so severe as to the justify the delay.[12]
5. The delay of waiting for completion of the Council's investigations needs a different assessment.
6. It is not uncommon for a request to plead the justification of this type of delay. Even though the Council issued the PIN and subsequently escalated enforcement action by applying for an enforcement order, a sensible view of the Council's objective was to give the builder an opportunity to expiate the contravention by submitting amended plans showing (among other things) new or revised levels. The builder subsequently submitted the amended plans and the Council approved them.
7. Ms Elliott needed to protect her own interests after 3 October 2017. Ultimately, her reliance on the Council to protect them was unreasonable and failed. She ought to have factored in the possibility that the contravention would not be resolved in her favour if amended plans were submitted and approved.
8. Even if I were to find that some delay after 3 October 2017 would be reasonable for Ms Elliott to consider how to properly protect her interests, a 25 month delay is not reasonable. The unreasonableness of that delay is strengthened by the fact that Ms Elliott had notice on 29 October 2018 that the Council decided there was no longer any contravention and it would not be further investigating any of her claims. Ms Elliott delayed 11 months after such notice before making her request. That delay is also excessive and shows the request was not made as soon as practicable.

1. I am not satisfied Ms Elliott made her request as soon as practicable after she had notice of the facts relied upon in support of her request. I would therefore refuse to consider the request.

1. It therefore follows I do not need to determine the merits of the request.
2. The Council, the Nguyens and Ms Elliott had some understandable difficulty in confining their written and oral submissions to the matters I have needed to determine the request. Those submissions included detailed submissions about the merits of the request.
3. Even if I am wrong about refusing to consider Ms Elliott's request on the grounds of delay, I would not have allowed the request on its merits. I will make some observations about the merits.
4. Ms Elliott relies on each of the three statutory grounds.[13] As I have stated, Ms Elliott has lengthy narratives relating to each of the grounds. It is difficult to discern the kernel of the grounds.

1. The mis-statement or concealment of fact relies on the failure to include complete existing and proposed ground levels on the subject land and 17 Rotherwood Drive. This failure must be material. It must rise to a level such that it would have influenced the Council's decision to grant a permit.[14] In some circumstances, it could rise to the level such that no Council acting reasonably could have made the decision that the Council made. It is a high hurdle.
2. If it had been necessary to determine the merits of the request, I would have been required to consider the Stonnington Planning Scheme (the Scheme).[15] Ms Elliott claims the mis-statement or concealment of fact lead to the overshadowing and side setback objectives in clause 55 of the Scheme not being met.
3. I have considered the Council officer's 2015 report on the permit application. I also inspected 17 Rotherwood Drive on 16 January 2019. I find it was open to the Council to have made the decision to grant a permit, even taking the failure to include complete ground levels into account.
4. The levels on the subject land are a function of shaping the land to enable convenient access to the townhouses. It is relevant that the finished floor levels of townhouses 1 & 3 are shown at 37.00 metres and 35.80 metres, respectively, on each of the 2014 application plans, the 2015 endorsed plans and the 2016 and 2018 amended endorsed plans, and that the Council is satisfied the existing townhouses are constructed to that floor level.
5. The finished floor level of Ms Elliott's dwelling is shown for the first time on the 2018 amended endorsed plans at 34.13 metres. In deciding to approve the 2018 endorsed plans, the Council delegate's report considered the difference in levels between the townhouses and Ms Elliott's dwelling.
6. The delegate decided there would be no unreasonable visual bulk impacts. I find that decision was open to the Council having regard to the length of the townhouse 3 south-facing wall, compliance with standard B17 and the position of the dwelling and outbuildings at 17 Rotherwood Drive.
7. The delegate also decided there would be no unreasonable overshadowing impact. I also find that decision was open to the Council having regard to the height and size of townhouse 3 and the amount and location of secluded private open space at 17 Rotherwood Drive.
8. Ms Elliott also claimed the grant of the 2018 secondary consent was unlawful because it did not comply with the Westpoint principle that a secondary consent must not authorise something for which primary permission is required.[16]
9. Ms Elliott claimed the secondary consent resulted in the need for consent to build over an easement. This claim is without merit because the primary permission must be a permission under the relevant planning scheme. Permission to build over the easement on the subject land was not and is not required by the Stonnington Planning Scheme.

1. Ms Elliott goes to considerable lengths in setting out details of claimed failures to comply with conditions 1, 2, 7, 8, 9, 11, 14 & 16 of the permit.
2. Failures to comply alone are insufficient. The failures must be fundamental to the grant of the permit. Ms Elliott placed most attention to conditions 7 & 8. These conditions relate to drainage matters and reflect her ongoing concern about the failure to prevent discharge of stormwater onto 17 Rotherwood Drive, mainly from the driveway on the subject land close to her northern side boundary.
3. Condition 7 required a drainage design to the Council's satisfaction before the construction started. Condition 8 required the driveway on the subject land to be designed so that overland flows reaching the driveway are re-directed away from 17 Rotherwood Drive. I understand the designs were approved. Accordingly, there was no failure to comply.
4. It appears one or both designs failed or were not complied with because, in 2017, the Council enforced the nuisance provisions of the Council's relevant local law in requiring the builders to act to prevent discharge of water onto 17 Rotherwood Drive. Ms Elliott heavily relied on that enforcement action. The non-compliance was ultimately resolved to the Council's satisfaction.
5. While Ms Elliott has clearly been distressed by drainage problems, they do not go to compliance with conditions 7 & 8 and are not fundamental for planning purposes.
6. Drainage issues relating to stormwater overland flows for a 3 townhouse development in an established residential area can be resolved by appropriate engineering solutions and would rarely if ever rise to the level of resulting in the permit being unable to be complied with. A failure to construct the townhouses in accordance with the endorsed plans by, for example, constructing one of them in a different location, may rise to that level.

1. Ms Elliott complained many times to the Council about failures to comply with other conditions. While the Council made and then withdrew an enforcement order application, if the substance of the request was failures to comply with conditions, those non-compliances were rectified.

1. Ms Elliott claims the Council made mistakes in relation to the 2015 grant of the permit and those mistakes relate to failing to consider ground levels, overshadowing, screening and flooding impacts at 17 Rotherwood Drive. I am not satisfied the Council made any material mistakes in relation to amenity impacts arising from clause 55 of the Scheme, for reasons I have already referred to.
2. I also find no mistake by the Council in the grant of a permit in relation to failing to anticipate drainage problems caused by the builder constructing the townhouses.

1. I could not have directed the Council to cancel the permit unless I was satisfied that Ms Elliott was 'substantially disadvantaged' by the matters in her request and that it would be 'just and fair' in the circumstances to do so.[17]
2. It suffices to observe that I would have been unlikely to be satisfied in relation to the fairness requirement. If I had not been satisfied about that matter, it would have been unnecessary to consider satisfaction about the disadvantage matter. Satisfaction about both limbs is required.
3. Weighing heavily against such satisfaction is:
   • (a) The substantial completion of the construction of the townhouses.
   • (b) The delay in bringing the request.
   • (c) The failure to seek a stop work order when making the request, thus allowing construction to continue to reach substantial completion.
   • (d) The failure to accept the Council's enforcement action was at an end on 29 October 2018. It was open to Ms Elliott to lodge her own enforcement order application after that date to enforce any outstanding contraventions.

1. If I had been required to determine the merits of the request, I would have refused the request based on the above observations.

1. At the conclusion of the preliminary hearing, Ms Elliott requested leave to file additional documents (including video footage) relating to drainage problems, including flooding of her land, claimed to have been caused by the construction of the townhouses.
2. I refused leave. Those details would not have assisted me in determining the request. They are not relevant to making out one or more of the mis-statement, permit conditions non-compliance or mistake grounds, for reasons that I have already referred to. It would have resulted in an unreasonable prolonging of the final decision on the request.

1. I accept that Ms Elliott genuinely feels aggrieved by the construction of the townhouses on the subject land.
2. Ultimately, the main weaknesses in Ms Elliott's request are:
   • (a) An unreasonable expectation that the outcome of her complaints to the Council and of the Council's action to enforce the permit would resolve all her complaints to her complete satisfaction and to achieve her outcome of demolition of townhouses 1 & 3.
   • (b) A failure to protect her own interests in October 2017.
   • (c) A failure to make the request as soon as practicable after she had notice, in October 2017, of the facts she relies upon in support of her request.
3. I will refuse to consider the request and dismiss the application.

[1] The Tribunal granted Ms Elliott permission to attend by telephone at the practice day hearing on 1 November 2019.

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Ms Elliott, request, attached document no. 23, p 2, paragraph 7.

[9] Interpretation of Legislation Act 1984 s 35.

[11] For completeness, the notice required the builder to 'apply for an amendment to [the permit] for the earthworks, changes to the natural ground level of the land and retaining wall along the southern boundary adjoining [Ms Elliott's land]'.

[12] Ms Elliott submitted some medical opinions with her request, but none specifically justify the delay on medical grounds.

[14] Wodonga CC v Kiene [2009] VCAT 81 [56].

[16] Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049.