Victorian Civil and Administrative Tribunal|2006-10-24

Wellington SC v Dasani Pty Ltd [2006] VCAT 2185 (24 October 2006)

Wellington SC v Dasani Pty Ltd [2006] VCAT 2185

1 The application for an enforcement order pursuant to section 114 Planning and Environment Act 1987 is allowed.

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whether the matter is resolved or is proceeding to a hearing,

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if that party is ready for a hearing,

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that party's estimate of the duration of the hearing, and

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whether a further directions hearing or mention is requested.

No attendance is necessary.

4 Leave is given to the respondent to lodge an application under section 87 of the Planning and Environment Act 1987 to amend planning permit P96/2004 within 14 days of the date of this order. The application must include the following:

(a)

A clear description of the nature of the amendment, including whether an amendment is required in respect of:

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what the permit allows

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conditions of the permit

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plans referred to in the permit or endorsed under the permit

(b)

Draft amended conditions which are to replace existing conditions or which are to be added.

(c)

Where plans are to be amended, a clearly readable, identifiable copy of the amended plans drawn to scale with dimensions, and a statement in writing describing the changes from the previous plans.

5 The section 87 application will be listed for hearing on 8 December 2006 at 10.00am. The hearing will take place on site at 10 Bay Street, Port Albert.

6 Costs reserved.

7 Liberty to apply.

Various aspects of units 1, 2 and 3 have been constructed other than in accordance with plans endorsed under planning permit P96/2004 and in contravention of conditions in the permit.

1 The respondent/owner must immediately cease all development on the subject land until further order of the Tribunal except for any internal works provided they are carried out strictly in accordance with the plans endorsed under planning permit P96/2004 dated 19 September 2005.

2 The applicant must serve a copy of this order on Dasani Pty Ltd and Barbara Owen pursuant to section 140 Victorian Civil and Administrative Tribunal Act 1998.

(given orally at the hearing and subsequently revised)

1 This is an application for enforcement order by Wellington Shire Council in respect of breaches of conditions in planning permit P96/2004. The permit was issued on 16 June 2005 at the direction of VCAT[1]. It relates to land at 4, 6 and 10 Bay Street, Port Albert and allows construction of 9 units and a restaurant with an upstairs dwelling.

2 Plans were endorsed under the permit and are dated 19 September 2005. Construction of units 1, 2 and 3 have commenced on that part of the subject land known as 10 Bay Street, Port Albert. A large number of photographs were tendered at the hearing and these show the three units substantially completed to a stage approaching lock-up.

3 The only contravention of the permit referred to in the application for enforcement order relates to the installation of gates and crossovers along the Queen Street frontage in contravention of the endorsed plans and condition 2(b) and (c).

4 The original plan accompanying the permit application showed car parking at the rear of units 1, 2 and 3. Mr Hogan, who lives opposite in Queen Street, objected to this aspect of the plans. The respondent/owner agreed to relocate the car parking to the front setback of the units on Bay Street and conditions 2(b) and (c) were included to give effect to this. Condition 2 required amended plans showing:

(b) 3 car parking spaces for units 1 to 3 are to be relocated at the Bay Street frontage of the units. No parking space is to be located between the side boundary and the projection of the side wall of unit 1.

(c) The rearrangement at the private open space at the rear of units 1, 2 and 3 including fences, gates, and other associated facilities of the private open space and the balance of land vacated by the parking spaces.

5 As a consequence of the inclusion of these conditions, Mr Hogan felt that his objection had been satisfied and did not participate in the subsequent applications for review at the Tribunal[2].

6 The endorsed plans show no gates or crossovers on the Queen Street frontage but three gates and crossovers have been constructed.

7 Mr Traa indicated that the council would be prepared to support one gate and crossover in Queen Street because this would reflect the situation that existed before the original dwelling on the land was demolished.

8 Notwithstanding this, no changes to the endorsed plans have been made. I note that there is no secondary consent condition in the planning permit that might enable such a change to be made. However, I consider that even if there was a secondary consent condition, such a change would be contrary to the conditions in the permit that were included to satisfy Mr Hogan's original objection. I consider that any change to either the conditions or the endorsed plans to include gates or crossovers to Queen Street could only be made pursuant to a request under section 87 of the Planning and Environment Act 1987 to amend the permit.

9 During the hearing and as part of the council's submission, it became apparent that the gates and crossovers in Queen Street were not the only aspects of the development not in accordance with the endorsed plans. There are a significant number of discrepancies between the endorsed plans and what has been built. They include:

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Windows in the upper floor side walls are a different shape (square rather than rectangular).

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Rear upper storey windows are larger and have a lower sill height.

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Use of horizontal colorbond cladding for the upper storey instead of horizontal painted weatherboard.

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Fence in Queen Street is higher than 2 metres shown on endorsed plans.

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Car parks at front of units in Bay Street have been ramped up making them higher than if they were at street level.

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Balcony windows have been included at the front of the dwellings rather than blank walls shown on endorsed plans.

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The location of balconies fronting Bay Street on units 2 and 3 have been moved.

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The roof profile of at least unit 1 appears to have been altered.

10 Other concerns were raised regarding the setback of unit 1 from the northern boundary and changes to the firewalls between units.

11 I find that there are numerous breaches of planning permit P96/2004 relating to the construction of units 1, 2 & 3 in terms of the development failing to comply with the plans endorsed under the permit. These breaches justify an enforcement order being made directing no further development to occur until further order of the Tribunal. An exception to allow internal works strictly in accordance with the endorsed plans is appropriate.

12 The number of changes and the nature of some of those changes made to the development depicted on the endorsed plans indicate a somewhat cavalier approach on the part of the respondent to its obligations under the planning permit and the Planning and Environment Act 1987. When plans are endorsed under a planning permit they must be complied with. If for some reason a developer wishes to depart from these plans, then the plans must be amended. In the case of this particular permit, because it was granted by the Tribunal and contains no secondary consent mechanism, the only way in which this may occur is by an application under section 87 to the Tribunal. The council does not have the discretion to amend the plans itself.

13 An opportunity should be provided to the respondent to apply for an amendment to the endorsed plans. As I have said, the only way in which the endorsed plans can be amended is if an application is made under section 87 of the Act. Notice of the application should be given to all persons who were notified of the original planning permit application. In this way, they will have an opportunity to be heard in respect of the merits of the proposed modifications. The merits of these modifications are not matters that I can deal with in the context of this enforcement order application.

14 Accordingly, I will give the respondent leave to lodge a section 87 application and I will list the matter for hearing on-site in early December. An on-site hearing is probably the best means of assessing the implications of whatever changes the respondent wishes to proceed with. The enforcement order will enable works to continue internally pending resolution of these matters but they may only proceed strictly in accordance with the endorsed plans. Further orders in this matter may be made following the outcome of the section 87 application. Such further enforcement order may include rectification of aspects of the development that do not accord with the endorsed plans as amended. Accordingly, this application for enforcement order will be adjourned to an administrative mention pending the outcome of the section 87 application.

[1] Scott v Wellington SC [2005] VCAT 1544

[2] P718/2005 was an application under section 82 of the Planning and Environment Act 1987 by another objector against the council's decision to grant a permit. Application P966/2005 was an application under section 80 of the Act against conditions in the Notice of Decision.

Wellington SC v Dasani Pty Ltd [2006] VCAT 2185

At a glance

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Decision date

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Judgment (18 paragraphs)

Wellington SC v Dasani Pty Ltd [2006] VCAT 2185 (24 October 2006)

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