Victorian Civil and Administrative Tribunal|2000-01-31

Whittlesea CC v Jala Pty Ltd [2000] VCAT 242 (31 January 2000)

Planning; Subdivision; Enforcement; Declaration; Subdivision permitted without permit pursuant to site specific provision of planning scheme; Referral authority requirement imposed on subdivision pursuant to site specific planning control; Requirement to satisfy acoustic performance measures; Validity of requirement; Nexus between referral authority requirement and subdivider; Failure to create continuing contractual relationship; Certificate of compliance issued pursuant to Subdivision Act 1988, s.13, effect; Failure to notify referral authority requirement to the subdivider; Subdivider no longer the owner or occupier, effect; Revocation of pre VPP format planning scheme with new VPP format planning scheme not continuing the site specific liability, effect; Planning and Environment (Planning Schemes) Act 1996, s. 24(3)(c); , ;

Applicant for Enforcement Order/Responsible Authority

Applicant for Declaration/ Responsible Authority

Lots 38-49 on Plan of Subdivision No 405224V (Part of Stage 2) and Lots 129-143 on Plan of Subdivision No 418016F (Part of Stage 5)

1. Application for Enforcement No 1999/041466 is dismissed.

2. The application for Declaration No 1999/041589 is dismissed.

3. In view of the dismissal of the application for Declaration No 1999/041589, Application for Review No. 1999/061619 is also dismissed.

______________________________

Mr Chris Wren of Counsel, instructed by Maddock Lonie and Chisholm, Solicitors, appeared for the responsible authority.

Mr Stuart Morris QC, instructed by Schetzer Brott and Appel, appeared for the subdivider, Jala Pty Ltd.

1. Application for Review No 1999/041466 is an application under section 114 of the Planning and Environment Act 1987, for an enforcement order requiring Jala Pty Ltd to take all necessary steps to ensure that any buildings on Lots 38-49 on Plan of Subdivision No 405224V and Lots 129-143 on Plan of Subdivision 418016F achieve the design sound levels recommended by AS 2107-1987, Acoustics - Recommended Design Levels and Reverberation Times for Building Interiors.

2. Application for Review No 1999/041589 is an application by the council for a declaration pursuant to section 149A(1)(a) of the Planning and Environment Act 1987 that:

The site specific planning scheme control, in conjunction with VicRoads 2 March, 1998 and 24 August, 1998 letters can be considered as requiring the developer of the Darebin Gardens Estate to construct a noise attenuation wall between the southern boundary of the estate and the Northern Ring Road in the event that Australian Standard AS 2107-1987 is not complied with.

3. Application for Review No 1999/061619 is an application under section 149(1)(a) of the Planning and Environment Act 1987 for a review of a requirement of VicRoads, requiring buildings in stage 2 and stage 5 of the subdivision of the Darebin Gardens Estate, which abut the Northern Ring Road:

"to conform to the AS 2107-1987 acoustics and the cost of any noise attenuation works which may be required will be borne by the developer".

4. VicRoads, being a referral authority under clause 102-1 of the Whittlesea Planning Scheme (pre VPP format) appeared in response to notice of the hearing and wished to be a party to all three matters. It had however not filed a statement of grounds. It wished to make a short submission. Notwithstanding their failure to serve and file a statement of grounds, there was no objection by any other party to them being joined as a party to the appeal.

5. The first amendment sought was as to the land to be affected by the desired order. The responsible authority sought to amend the address of the land from 298 Settlement Road, Thomastown being Lot B on Plan of Subdivision 405224V to:

No objection to this course was taken by Mr Morris QC for Jala Pty Ltd.

6. The second amendment that was sought was as to the desired order. The enforcement application issued on 31 May 1999 sought an order:

1. That the Respondents be required to construct a noise attenuation fence to the satisfaction of the responsible authority and VicRoads within three months of the date of this order.

7. At the outset of the hearing Mr Wren for the responsible authority sought to amend the order to require:

That the Respondent take all necessary steps to ensure that any buildings on Lots 38-49 on Plan of Subdivision No 405224V and Lots 129-143 on Plan of Subdivision 418016F achieve the design sound levels recommended by AS 2107-1987, Acoustics - Recommended Design Levels and Reverberation Times for Building Interiors.

Again, there was no objection taken by Mr Morris QC for Jala Pty Ltd.

8. The third application sought was a matter of consistency desired by Mr Morris QC, who informed the Tribunal that as at the date of the issue of the enforcement application, Jala Pty Ltd was no longer the owner nor the occupier of the land. The correct names of the owners and occupiers in sections 3 and 4 of the application for enforcement order were those owners named in attachment B to the application as well as additional owners in Murchison Way, Thomastown whose names had not been recorded in attachment B because around the date the document was typed, ie 3 March, 1999, these persons were purchasing under a contract of sale but had not yet settled the contracts.

9. The effect of the amendments would be that the name `Jala Pty Ltd' would be excluded from the owner and the occupier of the land.

10. Mr Morris advised the Tribunal that in respect of stage 2 of the staged subdivision of the Darebin Gardens Estate, the Statement of Compliance was issued on 6 March 1998 and the plan of subdivision was registered at the Titles Office on 30 March, 1998. In respect of stage 5 of the staged subdivision, the Statement of Compliance issued on 15 March 1999 and registration of the lots in that subdivision occurred shortly thereafter.

Extension of time for Jala Pty Ltd to lodge its Application For Review

11. The VicRoads requirement that is disputed by the subdivider was sent to council under cover of letter dated 2 March 1998. On 30 July 1999, the subdivider, Jala Pty Ltd, lodged with the Victorian Civil and Administrative Tribunal its application for review pursuant to section 149(1)(a) of the Planning and Environment Act 1987. Pursuant to section 149(2) such an application had to be lodged `within 28 days' of the date the referral authority made the decision to require that matter under the planning scheme.

12. After Mr Wren took time to deliberate with his clients, he took no objection to the extension of time sought by Jala Pty Ltd.

13. The Tribunal determined to allow all applications, for addition of parties to the appeal, for all amendments to the enforcement application and for the extension of time sought.

14. The Darebin Gardens Estate is a more unusual subdivision of land, in that it proceeded by way of a site specific planning scheme amendment No L91 in December 1994. It became a subdivision that, pursuant to clause 124-3A of the Whittlesea Planning Scheme (pre VPP format) did not require a planning permit, provided the following site specific control was complied with:

A permit is not required to subdivide and develop for detached houses, attached houses, dual occupancy and multi units, land known as the Darebin Gardens Estate provided that:

* The subdivision is approved by the responsible authority and is generally in accordance with the plans prepared by Millar and Merrigan Pty Ltd.

* An agreement under Section 173 of the Act is executed between the responsible authority and the owner of the land.

If the subdivision is not approved by the responsible authority generally in accordance with the plans prepared by Millar & Merrigan Pty Ltd, plan No. 9247D a permit is required.

The subdivision must meet the requirements of any relevant referral authority listed in Clause 102-1, and any requirement of the responsible authority.

15. It is relevant to note at this point that clause 124-3A was contained within the Residential C zone controls of the pre-VPP Whittlesea Planning Scheme, whereas the land is now subject to the R1 zone in the current Whittlesea Planning Scheme, which is the new VPP format planning scheme presently in force over the land. It is interesting to note that the equivalent of the site specific control over the Darebin Gardens Estate in clause 124-3A has not been carried over in the new format VPP scheme in any manner or form whatsoever.

16. The subdivision proceeded in stages. The first stage involved Lots 1-37, which lie between Parklands Drive to the north and the Northern Ring Road to the south, as well as lying to the east of the Yan Yean Pipe Track. Parklands Drive connects to Dalton Road to the west by crossing the pipe track and joining up with Narracan Drive which has also been renamed Parklands Drive.

17. Although there was a section 173 agreement entered into pursuant to the site specific planning control, its provisions are irrelevant for the purpose of determining the issues in this case. This is because, although its clause 3(e) reads "the requirements of all referral authorities as set out in the letters annexed to this agreement will be complied with and evidence that this has been done provided to the responsible authority", there were no requirements of referral authorities set out in letters annexed to the agreement.

18. The subdivision proceeded in stages. On 20 December 1994, council forwarded an application for stage 1 to VicRoads as referral authority, seeking their requirements. VicRoads responded on 12 January 1995 in the following manner:

VicRoads would require the following conditions to be placed on the subdivision:

Design and construction of the buildings will be in accordance with AS 2107-1987 `Acoustics - Recommended Design Sound Levels and Reverberation Times for Building Interiors' and AS 3671-1989 `Acoustics - Road Traffic Noise Intrusion - Building Siting and Construction'. The cost of any noise attenuation works required will be borne by the developer.

Any signalisation of the intersection of Parklands Drive and Dalton Road will be at no cost to VicRoads.

19. There was a variation to the plan of subdivision in stage 1, changing the number of lots from 38 down to 37, and a further letter dated 4 April 1995 from VicRoads required the same condition in respect of the revised or amended plan of subdivision in stage 1.

20. Following the stage 1 referral, and the 4 April 1995 requirement by VicRoads pertaining to noise attenuation works for the buildings, a dispute erupted between the subdivider and VicRoads concerning an issue of trespass when VicRoads constructed drainage works adjacent to the subject land. A letter dated 19 June 1995 from VicRoads to Mr Michael Jordan of Millar and Merrigan Pty Ltd, subdividers of Jala Pty Ltd, evidenced the resolution of this part of the dispute in the following manner:

As discussed at the meeting held on 16 June 1995, as a result of regrading of the proposed Ring Road east bound entry ramp, VicRoads proposes to relocate the proposed noise attenuation fencing from the edge of the entry ramp verge to the northern Right of Way boundary. The noise attenuation fencing is proposed to provide noise attenuation from Ring Road traffic for existing residences located north of Narracan Drive. In its relocated position, the fence will provide benefits to existing residences and residences on your client's proposed subdivision.

The fence will be 3.0 metres high and will be constructed in accordance with VicRoads Standard Drawing 3301 (copy attached as Appendix B). The eastern limit of the fence will be Chainage 40 100 on the Metropolitan Ring Road as shown on the drawing attached as Appendix A. Due to the lead time associated with the procurement of the required fencing materials, construction of the fence within the next three months will not be possible. VicRoads' contractor has undertaken to erect the fencing at the earliest possible time. It is expected that the fence will be constructed prior to the end of November 1995 and it is confirmed that the fence will be constructed at no cost to your client.

21. This resolution can only be understood by reference to the drawing attached as Appendix A. The effect of this resolution is that VicRoads was clearly prepared to erect a noise attenuation fence or acoustic fence along the southern boundary of most of the stage 1 lots fronting the Northern Ring Road, ie Lots 1-35 (even though stage 1 extended further east to Lot 37). During the hearing, Mr Hronopoulos for VicRoads advised that the acoustic fence in fact extended to the eastern extremity of Lot 36. It is just that the 213 metres depicted on plan appendix A extends to the eastern extremity of Lot 35. It is clear from reading a combination of appendix A and the letter, that the purpose of the fencing was to attenuate noise for existing residences located north of what was then described as Narracan Drive between Dalton Road and west of the pipe track. However, that same fence would also have a corresponding benefit to proposed residences on stage 1 of the Jala subdivision.

22. In early 1998, the beginnings of a different dispute between the responsible authority and Jala Pty Ltd surfaced. This different dispute concerned acoustic fencing. The dispute arose in respect of stage 2, an application for which had only been lodged around February 1998. There were six versions of stage 2 of the subdivision submitted, the final version dated 25 February 1998. The version 5 plan is dated 19 December 1997, whereas the stage 2, version 6 plan is dated 25 February 1998.

23. This dispute has been described by Mr Jordan as concerning the stage 1 requirements whereas the council insists they concern the stage 2 requirements. The disputes are contained in letters dated 9 February 1998 from the responsible authority to the subdivider, 11 February 1998 from surveyors to the council,

23 March 1998 from council to the subdivider, 13 July 1998 from council to the subdivider, 7 October 1998 from council to the subdivider, 8 October 1998 from the subdivider to the council, 22 October 1998 from the subdivider to the council and 27 October 1998 from council to the subdivider as well as 15 January 1999 from council's solicitor to the subdivider.

24. What is clear from the correspondence is that the subdivider was not notified until 27 October 1998 of the VicRoads noise attenuation requirement, although council do maintain that their representative discussed same with Millar and Merrigan (the engineers and representatives of Jala Pty Ltd). This means that notification of the requirements was only formally sent by council to the subdividers approximately seven months after the requirement was imposed by and notified from VicRoads to the council.

25. During the course of the hearing on the first and second days, it appeared that the council had some considerable difficulties with relation to its enforcement order and its Section 149A declaration. It would be remembered that Mr Wren not only sought an amendment to `the land' in the Section 114 Enforcement Order application, but also sought an amendment to the terms of what the order should require, being an amendment from requiring an acoustic fence to "that the respondent take all necessary steps to ensure that any buildings on Lots 38-49 .... and Lots 129-143 .... achieve the design sound levels recommended by AS2107-1987.....". Since it transpired that by 21 May 1999, the subdivider had sold all these lots and was neither owner or occupier thereof, he had no legal right to enter the land and ensure that any buildings on those lots achieved the Australian Standard performance levels. Mr Wren conceded that since the owner of the land at the time the requirement was imposed, was a subdivider only and not the builder, the owner would have had to either include a covenant on title requiring compliance with that requirement by subsequent purchasers or build a fence and hope that it would meet the Australian Standard. When I queried Mr Wren on the efficacy of an order which was not capable of compliance by the subdivider who was no longer the owner of the land, he responded that he might think of amending the order accordingly. VicRoads was queried about the possibility of building the noise attenuation fence on their road reserve abutting the subject land and subsequently advised that it would be agreeable. Therefore on the second day of the hearing, Mr Wren for the responsible authority sought the following amendment to the enforcement order:

That the respondent be required to construct a noise attenuation fence generally in accordance with specifications contained in the letter from Watson Moss Growcott Acoustic Pty Ltd, dated 12 October 1998 within the road reserve to the satisfaction of the responsible authority and VicRoads within three months of the date of this order.

26. Mr Morris did not consent to this amendment but did not oppose it. He made no comment.

27. Further, Mr Wren sought to amend paragraphs 2 and 6 in the Attachment A to the enforcement order application to include the 24 August 1998 VicRoads requirement in relation to the Stage 5 subdivision. This was formally opposed by Mr Morris QC.

28. Furthermore, Mr Wren sought an amendment to the Section 149A(1)(a) Application for Declaration to include the 24 August 1998 VicRoads requirement in relationship to Stage 5 of the subdivision. Mr Morris neither consented to nor opposed the application to amend.

29. It is relevant to note that the latest form of the order now sought by the responsible authority requires works (a fence) which are not the same as those set out in the VicRoads requirement in relation to Stage 2 or Stage 5, but Mr Wren advises it will provide compliance with the VicRoads requirement (`building construction').

A Misunderstanding of the Stage 1 Acoustic Fence Requirement

30. As mentioned before, the subdivision proceeded in stages, with the first stage comprising originally a 38 lot, then a 37 lot subdivision. The noise attenuation condition was imposed on the amended 37 lot stage 1 subdivision by letter dated

4 April 1995 notified from VicRoads to the council. There was no evidence placed before me, whether by way of documentary submission or oral evidence, as to whether that condition was notified from the responsible authority to the respondent/subdivider.

31. What Mr Wren for the council called a `diversion' occurred after April 1995 and in and around June 1995 when VicRoads trespassed on the Jala land while carrying out its drainage works in its road reserve. A meeting was held on site on 16 June 1995, confirmed in a subsequent letter dated 19 June 1995 which discussed rectification works as well as a regrading of the proposed ring road eastbound entry ramp, which involved relocation of a noise attenuation fence. The letter makes it clear that the latter would provide a benefit to the `residences on your clients proposed subdivision', although it was by way of a by-benefit. The letter concludes:

In summary, adoption of the measures described in this correspondence will rectify the effects of the intrusion of the drainage trench excavation into your clients development and will provide increased noise attenuation for properties on your clients development at no additional cost to your client.

32. It is this correspondence which Mr Jordan for the subdivider maintains formed the basis of a misunderstanding or misinterpretation with relation to the issue of an acoustic fence generally between the southern boundary of the proposed lots and the northern ringroad. Mr Jordan gave evidence that the subdivider had received no formal notification of the acoustic fence requirement from council; that any reference to the acoustic fence was a reference to the discussions and correspondence of 16 and 19 June 1995, and that the only time he had been given formal notification of the requirement on Stage 2 of the subdivision was by letter dated 27 October 1998 from council to Mr Jordan, (seven months after the requirement was imposed by VicRoads).

33. Mr Jordan is the principal Engineer in Millar and Merrigan Pty Ltd, Surveyors, who dealt with the subdivision and who is consistently named in the correspondence.

34. It should be noted that there were a few versions of the Stage 2 plan of subdivision lodged with council for certification, the final version being version 6 dated

25 February 1998, earlier versions had been submitted on 27 November 1996,

24 February 1997, 17 March 1997 and 22 December 1997. The differences in the versions and the reasons for their differences are irrelevant.

35. On 9 February 1998, and before the sixth version of the Stage 2 plan had been lodged for re-certification under Section 11(7) of the Subdivision Act 1998, the `dispute/misunderstanding' between the council and the subdivider commences. council writes to the subdivider itself (the Banco Group of Companies) in the following terms:

There have been several enquiries from purchasers and prospective purchasers of land in Stage 2 about the construction of the acoustic fence along the boundary of the estate and the Metropolitan Ring Road. The existing acoustic fence appears to be between the ring road and the southern boundary of Stage 1 only. You are requested to consult with VicRoads about satisfying their requirements about acoustic measures that need to be undertaken prior to Compliance being achieved. A copy of VicRoads letter is enclosed for your information.

36. During the hearing, it was clarified that the VicRoads copy letter enclosed must have been the 4 April 1995 letter which discussed the condition as related to Stage 1 of the subdivision.

37. On 11 February 1998, and prior to the Stage 2 acoustic condition being notified from VicRoads to the council on 2 March 1998, Mr Jordan for Millar and Merrigan Pty Ltd, Surveyors for the subdivider responds to council in the following terms:

We are concerned at your references to sound attenuation fencing required to be constructed by the Principal as it is contrary to our understanding of the matter.

The letter from VicRoads which you attached to your letter refers to Stage 1 only, a copy was not forwarded to our office.

With regard to the acoustic fencing, the agreement with VicRoads at the time of the commencement of the development was that VicRoads would construct the road attenuation fence at their cost to the extent that they deemed necessary to protect the adjacent residentially zoned areas.

We enclose a copy of their letter to Millar & Merrigan dated 19 June 1995, which supersedes their letter to your council.

This letter clearly sets out that the fence was constructed to suit a road chainage based on road design and nothing to do with subdivisional staging.

There was never any requirement from VicRoads for the developers to provide any further fencing.

We would also point out that there is no requirements in the 173 Agreement to obtain VicRoads clearance, with regard to noise attenuation and do not believe it can hold up the Statement of Compliance.

38. On 2 March 1998, council refers the Stage 2 subdivision to VicRoads and on the same date VicRoads responds to council with the following requirement that they wish imposed on the subdivision:

The buildings are to conform to the AS2107-1987 Acoustics and the cost of any noise attenuation works which may be required will be borne by the developers.

39. Provided that condition is imposed, VicRoads advises it will consent to the certification of the plan.

40. This notification by VicRoads to the council was never forwarded or notified to the subdivider or its representatives until 27 October 1998.

41. It should be noted that Mr Jordan's letter of 11 February denies every having received the condition even in relation to Stage 1, and believes that any acoustic fencing reference is in regard to the 19 June 1995 agreement, only. Mr Jordan says that he understood the 1995 agreement to be a representation that acoustic fencing would be provided generally by VicRoads along the southern boundary of the subdivision, but that in any event, there was no requirement placed on the subdivider for such provision as a condition of the subdivision.

42. On 23 March 1998 council take issue with Mr Jordan on the effect of the 19 June 1995 agreement/diversion. The letter is headed Noise Attenuation - Stage 2 but contains the text of the 4 April 1995 condition in relation to Stage 1, and goes on to state:

As you know the above VicRoads requirements emanate from the Section 173 Agreement which requires compliance with the requirements of all referral authorities (Clause 3(e)).

Therefore, in council's opinion the responsibility for noise attenuation rests squarely with the developer, which includes the full cost of all attenuation works specified by VicRoads to meet the above standards.

In my recent discussions with VicRoads, they have indicated that if you would rather pay for the construction of an acoustic fence rather than the additional works to the houses, VicRoads would be prepared to consider such a proposal.

43. On 13 July 1998 council writes again to Mr Jordan, regarding `Noise Attenuation - Stage 2, Darebin Gardens Estate', but again includes the Stage 1 condition in the text of the letter and seeks details of compliance with the noise attenuation measures required by VicRoads.

44. On 20 July 1998 Mr Jordan replies regarding `Noise Attenuation - Stage 2, Darebin Gardens Estate' in the following terms:

1) The conditions you refer to as relating to VicRoads was in a letter sent to your council which was never passed onto us or the developer, and was not made a condition of the 173 Agreement. VicRoads clearance was not required on the Section 173 Agreement.

2) The VicRoads letter, a copy of which was provided belatedly to us, refers to Stage 1 only, and we have provided documentary evidence in a later letter from VicRoads that the authority would carry out acoustic fencing as required. We provided your council with a copy of this letter.

3) Until we receive the letter from council dated 9 February 1998, at the time release was being sought on Stages 2 and 3 no reference in any council documentation or approval letters was made to any requirement to provide sound attenuation fencing on this estate.

As previously advised we have engaged Watson Moss Growcott Acoustics Pty Ltd (WMGA) to investigate and report on the noise situation. As also advised, they had been informed by VicRoads that the Authority was to prepare a report. Last week (WMGA) gave up waiting for VicRoads and were arranging to carry out their own tests and would report to us, we expect in the next couple of weeks. As the situation currently exists, we have no information from any authority that either sound attenuation devices are required, or if they are what type is required. Until we have this information it is rather difficult to even discuss the cost of works, or the responsibility for them.

45. It is relevant to note that the Plan of Subdivision for Stage 2 of the Darebin Gardens Estate was both certified and a Statement of Compliance issued on 6 March 1998, that is four days after the VicRoads requirement was notified to the council but prior to it having been formally notified to the subdivider.

46. On 7 October 1998, council write again to Mr Jordan, advising that it will seek an enforcement order requiring compliance with Section 173 Agreement, unless the subdivider advise whether noise attenuation is required and if so, what form it will take.

47. By response on 8 October 1998 (being the very next day), Mr Jordan advises that he is not yet in receipt of a report he commissioned of Watson Moss Growcott, Acoustic Consultants, and again insists that:

The only VicRoads requirement with regard to noise was in their letter of 4 April 1995 which refers to Stage 1 only. There is no reference or any correspondence from VicRoads for any requirement on other stages. A later letter from Vicroads then advised they would be constructing this fence.

Preparation of the Watson Moss Growcott Acoustic Report

48. It is relevant to interpolate here the issue of the Watson Moss Growcott report. That report was tendered by the responsible authority when cross-examining Mr Jordan, who had been presented as a witness by Mr Morris QC, representing the subdivider. It is interesting to note that the acoustic report addresses a noise level objective of 63db(A) L10(18hr), measured between 6.00am and midnight which performance measure is contained in VicRoads Policy Catalogue - Traffic Noise Reduction, and does not address the specific Australian standard contained in the VicRoads referral requirement sent by VicRoads to the council, which addresses the design sound levels of buildings from within the building. Therefore, the commissioning of the Watson Moss Growcott report is consistent with the subdivider's assertion that it had no notice between March and October of the VicRoads Stage 2 requirement and had sent the Acoustic Consultant off to do a report based on pressure from the responsible authority. The Consultant then proceeded on the basis of general VicRoads policy rather than the specific performance measure required by the purported subdivision/planning requirement.

49. On 22 October 1998, Mr Jordan writes again to council in the following terms:

We advise that we have now been able to discuss the matter at some length with the developer.

They are keen to ensure that they fulfill all their obligations with regard to this development as set out and agreed in the 173 Agreement.

To allow them to obtain more advice, would you please advise which specific condition of the Section 173 Agreement or other documentation that council believe obligates the principal to undertake Noise Attenuation works for Stage 2 and further stages of the estate.

The principal has stated their keenness to resolve this matter and look forward to your advice so that their obligations can be fully determined.

50. It then transpires that it is only on 27 October 1998, and in response to Mr Jordan's 22 October 1998 letter, that the first notification of the VicRoads requirement in relation to Stage 2 is sent to the subdivider. This is more than seven months after the event and after certification of the Stage 2 Plan of Subdivision.

51. Council subsequently conceded that there was never a Section 173 Agreement obligation on the developer to provide noise attenuation works and sought to establish their case based on Clause 124-3A general provision of

the subdivision must meet the requirements of any relevant referral authority ...........

52. On 15 January 1999 council involved their Solicitors with regard to the `Darebin Gardens Estate - Noise Attenuation Fence' although specific reference is made to Stage 2 of the Subdivision. By 16 February 1999 council threaten not to issue the Statement of Compliance with relation to Stage 5 of the Darebin Gardens Estate, but following threats of a Supreme Court action for mandamus by Schetzer Brott and Appel, Solicitors for the subdivider, issue the Statement of Compliance for Stage 5 on 15 March 1999.

53. Whereas Stage 2 had been certified and a Statement of Compliance issued on the same date, ie. 6 March 1998, the Stage 5 subdivision had been certified on 26 May, 1998, re-certified on 5 August 1998, the VicRoads Stage 5 requirement imposed on 24 August 1998 by letter of the same date from VicRoads to the council, but it does not appear to have been communicated to the subdivider until 16 February 1999, when the issue of the Statement of Compliance relating to Stage 5 blows up.

54. In response to the threat of mandamus, council respond to the subdivider in the following terms:

STATEMENT OF COMPLIANCE - DAREBIN GARDENS ESTATE STAGE 5

I confirm that the council is prepared to issue the Statement of Compliance for the above stage provided that:

1. Payment is received for street tree planting.

2. Clearances are provided from the servicing authorities.

I also confirm verbal advice from Manager Planning Services that the issue of non-provision of noise attenuation works does not prevent council from issuing the Statement of Compliance.

Therefore, I would assume that given the outstanding requirements are not related to actions of council, that your ultimatum of commencement of proceedings against council in the Supreme Court will not be proceeded with.

The council does, however, intend to continue with its actions in the VCAT against the developer, requiring that its obligations for noise attenuation measures be complied with.

It seems to council that the imminent construction of still more houses along the Ring Road alignment as part of this Stage 5 will further compound the problem. The council is determined that the developer meet its obligations and not put future residents in the position of having the noise attenuation issues unresolved. Future purchasers of lots in Stage 5 must be advised of the requirement and enquiries made to council by such purchasers will be supplied with the planning conditions relating to noise attenuation.

The Differences Between the Australian Standard and the VicRoads Policy

55. It is important to address differences in achieving the different performance measures under the above two acoustic performance standards. The method of achieving the VicRoads general policy is, as confirmed by Watson Moss Growcott in its report dated 12 October 1998, by the provision of a three metre high acoustic fence in the terms of an attached sketch to that report. The measures by which the Australian Standard contained in the referral requirement can be achieved are between a choice of three methods:

c) by design materials incorporated into buildings which will achieve an internal noise reduction level.

56. Notwithstanding the tenor of the correspondence mentioned above, Mr Wren for the responsible authority maintained that by virtue of oral conversations between Officers of the council and Mr Jordan or other members of Millar and Merrigan Pty Ltd, it was well known to the subdivider that there was an acoustic fence requirement between the southern boundary of the lots and the northern ring road. Mr Wren for the responsible authority produced no oral evidence to confirm same (because the reported conversationalist had left council) and he could put it no higher than this assertion that the information was conveyed orally.

57. Mr Jordan on the other hand did give evidence and was subject to cross-examination. He was the Civil Engineer employed by Millar and Merrigan Pty Ltd, responsible for handling of the subdivision through the council. Mr Jordan insisted that prior to the issue of the Statement of Compliance for the Stage 2 subdivision, and in fact prior to its registration at the Titles Office on 30 March 1998, he had no knowledge of the VicRoads requirement for Stage 2. He insisted that whenever he required information from council regarding the condition, he only received the Stage 1 condition and consistently responded that it was not a requirement either for Stage 1 (because of the agreement that VicRoads would provide the fence) or even for the subsequent stages (because the condition related to Stage 1). Under cross-examination from Mr Wren, Mr Jordan agreed that after February 1998, council were insisting on an acoustic fence requirement, but he had thought council misunderstood the requirement for fencing due to the April 1995 `diversion agreement', and due to the fact that he had received no information about the imposition of the condition on Stage 2.

58. Mr Jordan also admitted that had this been a usual `permit required subdivision' situation, he would have been familiar with the imposition of an acoustic fence condition on the planning permit for the subdivision but this was an unusual situation in that no planning permit was involved, and the type of condition referred to in the Stage 1 documentation, was unfamiliar to him as he had never before seen such a condition requiring compliance with a `design standard'. He had been familiar with the far more certain conditions requiring the provision of an acoustic fence to a specified design.

The flaws in the council's case alleged by Mr Morris

59. Mr Morris' arguments can be summarised under the following headings:

(i) Jala is neither the Owner nor Occupier therefore cannot be attached by an Enforcement Order;

(iii) Lack of Notice of Requirement invalidates same

(iv) Repeal of the subordinate legislation discontinues any liability

(v) Insufficient proof of non compliance for an Enforcement Order

Jala is neither the owner nor occupier therefore it cannot be attached by an Enforcement Order

60. Jala can be attached under section 114(3)(d) of the Planning and Environment Act 1987, because it has been proved to be a person by whom or on whose behalf the subdivision was carried out. Mr Morris argued that an Enforcement Order cannot be effectively made under section 119(b)(iv)(B) unless the landowners or VicRoads gives permission to the subdivider to build such a fence on its land.

61. During the hearing, Mr Hronopoulos gave consent to building of any acoustic fence on VicRoads land. Such consent having been given, an Enforcement Order, were it to issue, could be efficacious.

62. Mr Morris argued that this is not a valid requirement because it attaches to buildings and not to the subdivision, or, to put it another way, because there is insufficient nexus between the requirement and the subdivision, the subject matter of the permission. The subdivision having been completed as evidenced by the Statement of Compliance issued pursuant to the Subdivision Act 1988, section 13, it is not a requirement which by itself, survives the issue of the Statement of Compliance in each case of Stages 2 and Stages 5 respectively.

63. There is a difference in the imposition of the requirement in Stages 2 and 5. The Stage 2 requirement was not notified to the subdivider prior to approval of the subdivision. Mr Wren conceded that the date of approval of the subdivision was the date the Statement of Compliance issued which, in respect of Stage 2, was 6 March 1998 and which, in respect of Stage 5 was 15 March 1999. Accordingly, only the Stage 5 of VicRoads condition imposed on 24 August, 1998 and notified on 16 February 1999, was notified prior to the Statement of Compliance being issued in respect of Stage 5. The Stage 2 requirement was notified after council had certified pursuant to s.13 that the provisions of the Subdivision Act 1988 had been complied with in respect of Stage 2, and is accordingly invalid.

64. Mr Morris submitted that the requirement had to satisfy the same three tests of validity as any permit condition:

(i) the requirement had to fulfil a planning purpose;

(ii) the requirement had to reasonably relate to the permitted development;

(iii) the requirement had to be sufficiently certain;

65. Mr Morris maintained that the requirement was invalid for failing to comply with the last two criteria. This was in fact his primary argument. After citing the Pyx Granite case [1958] 1 QB554 and the 271 William Street case [1975] VicRp 15; [1975] VR 156, which were synthesised by Mr Byard in Rosemeier [1996] 20 AATR 86, Mr Morris submitted that the requirement fulfilled a planning purpose, but was not reasonably related to the permitted development in that it dealt with a performance standard applied to buildings, and did not apply to the subdivision itself. Therefore, since his client had completed the subdivision and sold the allotments, he was no longer, and could no longer be, responsible for the design and construction of the buildings. To put it another way, Mr Morris submitted that in order to be reasonably related to the development permitted (which was the subdivision and development for detached houses, attached houses, dual occupancy and multi units) the condition, to be valid, had to attach to the development prior to the issue of a Statement of Compliance in the following manner:-

(i) either the actual works had to have been completed before the Statement of Compliance was issued;

(ii) A contractual arrangement would have had to have been entered into either with the subdivider, or (by way of Section 173 Agreement or a covenant on the land) with subsequent builders/purchasers of the allotments to ensure a continuing obligation to meet that requirement.

66. However, both subdivision stages having been certified by council as having been complied with pursuant to section 13 of the Subdivision Act 1988, that was "conclusive evidence that the provisions of this Act relating to certification including any preliminary requirements have been complied with".

67. Mr Morris continued, the only way in which a requirement attaching to buildings can be imposed on a subdivision is:

(ii) by way of a private formal contractual agreement with the subdivider, Jala Pty Ltd; or

(iii) by way of a restriction on the Plan of Subdivision itself.

As to the latter, there is a debate between Member Barr's modus operandi in Craighill Nominees v Boroondara City council (1996) 17 AATR 109 and Member Moles' modus operandi in Wilson v City of Bayside (1998) 21 AATR 287 at 293.

68. Therefore, this generally worded condition or requirement, even if notified to the subdivider, was invalidly imposed by VicRoads or the council or both of them, so as to be ineffective to continue the obligation after the issue of the Statement of Compliance.

69. Mr Wren responded that the requirement was not uncertain in its application, as it gave the subdivider flexibility in the manner in which it satisfied the requirement, ie by earth mounds, by building design materials or by way of acoustic fence provision.

70. That may be, but the requisite nexus in the imposition of the requirement is missing, and that is the need to ensure, before the Statement of Compliance issues, that the subdivider or its successor in title is tied to an obligation to implement that requirement. That requirement not having been adequately imposed, it is now invalid.

The effect of Section 13 of the Subdivision Act 1988

The council must issue a Statement of Compliance to the applicant in the prescribed form as soon as possible after it is satisfied that all requirements of and under this part in the Planning and Environment Act 1987 that relate to public works have been met; or (ii) there is an agreement to secure compliance with those requirements.

72. Pursuant to the Subdivision Act 1988, section 3:

(a) the provision of roads, reserves, open spaces or services within a subdivision; or

(b) fencing, landscaping, and roadworks outside the subdivision for roads, reserves or public open space related to the subdivision; or ...

73. Whether the fencing discussed falls within paragraphs (a) `services' or (b) above, in each stage of the subdivision, the council certified that those works were met and that certificate is now, pursuant to section 13, conclusive evidence that the provisions of the Act relating to certification have been complied with.

Failure to notify the Subdivider of the Referral Authority's Requirement

74. An essential element of any condition is that it should be notified. The Stage 2 condition was not notified. The Stage 5 condition was notified, but in the context of the dispute about an acoustic fence condition generally, which was misunderstood to pertain to Stage 1 of the subdivision. I consider, looking at the evidence and correspondence as a whole, that any misunderstanding was reasonably held.

75. Mr Wren insisted that it was sufficient that the subdivider knew that there was an issue concerning an acoustic fence requirement and that general knowledge of that issue was sufficient to clothe the referral authority's requirement with the attribute of validity. I disagree. Mr Jordan's knowledge of an issue concerned the Stage 1 requirement and the responsible authority again could not prove that he had written notification of that requirement until 9 February 1998, even though it was imposed in February and April 1995. Further, it was always clouded by the 1995 `diversion Agreement' and the reasonable apprehension formed by Mr Jordan that it was a matter VicRoads would be undertaking with relation to the entire subdivision, and even if not, that it was not a requirement placed on his client. General knowledge of an issue does not render valid an invalid requirement nor cure an essential but missing element.

76. Given that the Stage 2 notification never occurred and Stage 5 only occurred in the context of that misunderstanding, as Enforcement Orders are discretionary matters, considering the entire circumstances of this case, I would not exercise my discretion to issue an order against the Respondent.

77. The difficulties which counsel for the council experienced in constantly needing to amend the documentation behind the applications for declaration and enforcement orders in order to try to formulate an order which had some meaning, only supports my decision.

78. Mr Wren argued that the council's Stage 1 letter of 4th April 1995, deals not only with Stage 1 but with all the Stages because it relates to Lots 1-38 or 37 plus Lot A being the balance of all the other stages, and is accordingly notification of the requirement in respect of all stages. I disagree, because the heading of the 4 April 1995 is `proposed 38 lot residential subdivision' and that clearly relates to Stage 1 only.

Repeal of the subordinate legislation discontinues any liability

79. It was common ground that the section 124-3A site specific control, was revoked when the pre-VPP format Whittlesea Planning Scheme was revoked. This control has not been replaced by either an equivalent provision the new VPP format Whittlesea Planning Scheme or by a planning permit to the same effect. Mr Morris maintained that the Planning and Environment (Planning Schemes) Act 1996, section 24(3)(c) which:

........ continues [the liability] to the extent that the new planning scheme has provisions to the like effect as the provisions of the revoked scheme ..........

makes it clear that the liability does not continue because it has not been repeated in the new VPP Scheme. By the time the new format Whittlesea Planning Scheme was gazetted on 8 July 1999, the subdivision had been carried out and was at an end. This section 24(3)(c) specific provision, overrides the general provision of the Interpretation of Legislation Act 1984, s.28(2)(e), which reads:

Where a subordinate instrument or a provision of a subordinate instrument is repealed or amended ... the repeal, amendment, expiry, lapsing or ceasing to have effect of that subordinate instrument or provision shall not, unless the contrary intention expressly appears affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision.

80. I agree with Mr Morris' submission that as provisions to the like effect have not been re-enacted in the new VPP scheme, the liability under the site specific control has lapsed.

81. Mr Morris submitted that no evidence was tendered by the responsible authority proving that the houses that have been built do not comply with AS2107-1987, therefore it was speculative what the noise levels inside the houses were. He said that since this is an Enforcement Order application, the responsible authority must prove its case, pursuant to the Planning and Environment Act 1987, section 119(a)(i), strictly. I agree that applicants for Enforcement Orders do need to prove their case strictly, and have not done so, but in view of my above comments it is unnecessary for me to rule on the proofs.

82. Mr Morris agreed that there was no need to deal with the merits of his Application for Review No 1999/061619 if I was not disposed to granting the declaration sought by council. The merits were argued before me, but in view of the position I have taken on the validity of the requirement, I will not deal with this application by the subdivider under s. 149(1)(a) other than to say I would have granted the application had it been necessary to do so.

83. The council seek a declaration that the VicRoads 2 March 1998 and 24 August 1998 Noise Attenuation Requirement "can be considered as requiring the developer of the Darebin Gardens Estate to construct a noise attenuation wall between the southern boundary of the estate and the northern ring road in the event that the Australian Standard AS2107-1987 is not complied with".

84. I am not prepared to make this declaration as I think the requirement invalid in the form it was imposed on the subdivision. The requisite nexus between the requirement and the subdivision is missing, being the need to tie the subdivider or any subsequent purchaser to the requirement after the statement of compliance has been issued. I am also not prepared to exercise my discretion to order enforcement of a requirement which I consider invalid.

______________________________

Environment (Planning Schemes) Act 1996

Environment Act 1987

Legislation Act 1984

Whittlesea CC v Jala Pty Ltd [2000] VCAT 242

At a glance

Court

Decision date

Source

Judgment (176 paragraphs)

Whittlesea CC v Jala Pty Ltd [2000] VCAT 242 (31 January 2000)

Parties

Legislation Cited (3)