This matter involves an Application for Enforcement Order lodged with the Tribunal by Whittlesea City Council on 4 April 2006. In summary, this Application alleged that various fill/waste had been illegally placed on the land at 180 Bindts Road Wollert by the Respondents, being Giovanni Saolini and Bill (Biaggio) Saolini. The former is the owner of the subject land and the latter I understand has been the occupier over the relevant period.
The first order made by the Tribunal was the setting down of this proceeding by the then Deputy President Byard for a hearing before a legal member - see DP Byard's order of 24 May 2006.
This matter in due course came before me (as a Legal Member) for hearing on 9 October 2006. At that stage both Respondents were alive but neither appeared at the hearing. However I nevertheless heard submissions from the representatives of Council and Melbourne Water.
Given the straight-forward and overwhelming evidence of the illegal dumping of fill/waste on the subject land either carried out by and/or allowed by the Respondents, I made substantive orders dated 19 October 2008.
In these orders I found that the Respondents had breached the Whittlesea Planning Scheme in carrying out/allowing the dumping of fill/waste on the subject land without any planning approval for same. However I did not make any final orders at this stage, since Council was content to itself prepare a proposed Land Management Plan ("LMP") to provide a reasonable level of detail as to the extent of the illegal fill/waste and how the necessary clean up works should be carried out.
Without meaning any criticism of Council, there was then a substantial time involved in the preparation of this LMP, which was in due course circulated to the Tribunal and the parties.
The other substantial complication in this matter has been that in the latter part of 2007 the owner Mr Giovanni Saolini passed away. In due course a solicitor (ie Mr Paul Natoli) was appointed to act for the sister of the deceased (ie Ms Filomena Michielin). What also gradually emerged through the involvement of Mr Natoli is that the deceased has died intestate, and there is uncertainty as to the net value of the deceased's estate taking into account the likely clean up cost of the subject land.
The practical upshot was that despite follow up hearings on 16 November 2007 and 18 April 2008:
the occupier Respondent Mr Bill (Biaggio) Saolini has still not appeared or been represented at any stage before the Tribunal;
the owner Respondent Mr Giovanni Saolini has been deceased for coming up to a year, has died intestate, and at this stage the Tribunal is unaware whether any other family member has even applied for Letters of Administration in relation to the deceased's estate;
by the end of July 2008 this matter has been running at the Tribunal for almost two and a half years.
However on the positive side of the ledger, Council to its credit has made it clear that it is committed to progressing the necessary clean up of the illegal fill/waste, in consultation with the other parties. We also have the benefit of Council having earlier circulated its draft LMP.
In my view, the Tribunal has been extremely patient and accommodating in terms of taking all reasonable steps to achieve an appropriate and fair outcome in this enforcement proceeding. In particular, I think (despite the major cost to Council) it has been a sensible and good outcome for Council to have taken the initiative to prepare the draft LMP.
However I am very concerned at the delays in resolving this proceeding.
On the one hand, I accept that it is the Tribunal's role to:
make substantive findings regarding whether the enforcement application has been made out (see my orders of 19 October 2006); and
ensure there is a reasonable basis/framework for the necessary clean up/remediation works to occur, to deal with the illegal dumping of waste/fill on the subject land (hence my 19 October 2006 orders provided for the preparation of the draft LMP by Council).
On the other hand, ultimately it is not the Tribunal's role to:
become unduly involved in the fine detail of how the draft LMP should be finalised;
resolve the inherent uncertainties involved in a person dying intestate, particularly where it is not clear as to what extent other family members are committed to resolving the situation. If final orders are made against both Respondents on a joint and several basis (which I proposed to do), this provides Council with a discretion to take whatever action is required against either or both of the Respondents to progress the necessary clean up/remediation works as per the final version of the LMP;
plot out how the necessary funds for the clean up of the subject land will in practice be extracted from the Respondents.
For these reasons, and given the lack of any meaningful progress since the last hearing on 18 April 2008, I consider it appropriate to now make final orders. As a matter of procedural fairness, I have made interim orders above:
setting out my draft proposed final orders; and
allowing the parties the final opportunity to provide me with any written submissions on these draft proposed final orders.
I await any such final submissions from the parties.
Parties
Applicant/Plaintiff:
Whittlesea CC
Respondent/Defendant:
Saolini [2008] VCAT 1442
Cases Cited (1)
Whittlesea CC v Saolini [2008] VCAT 1442 (23 July 2008)