Victorian Civil and Administrative Tribunal|2000-04-30

Whittlesea CC v SM & LM Lewis [2000] VCAT 967 (30 April 2000)

PLANNING LIST Application for Review No. 1999/71817

Town Planning, Planning List, enforcement order, S. 120 VCAT Act, review of order, discretion, whether review would achieve anything, prejudice, refusal.

This application under s. 120 of the Victorian Civil and Administrative Tribunal Act 1998 for review of the enforcement order made on the 25 January 2000 pursuant to the hearing on the 20 January 2000 is dismissed.

Mr G Fairall of the City of Whittlesea, appeared for the Responsible Authority.

Mrs Leanne Lewis, Respondent, appeared in person for herself and her husband who is the other Respondent.

Application under s.120 of the Victorian Civil and Administrative Tribunal Act 1998 to review a decision to grant an enforcement order under s. 114 of the Planning and Environment Act 1987 which order was made on the 20 January 2000 and where the Respondents did not appear and were not represented.

1. An enforcement order was made under s. 114 of the Planning and Environment Act 1987 (PE Act) pursuant to a hearing conducted on the 20 January 2000. Mr Fairall appeared for the Responsible Authority on that day and there was no appearance by or on behalf of the Respondents.

2. The matter had previously been before me for a directions hearing on the 22 October 1999. An interim determination containing directions, and dated 27 October 1999, was subsequently issued. A direction was given at that time for the application for an enforcement order to be set down for hearing.

3. Prior to the hearing on the 22 October 1999 the Respondents had sought some professional advice in relation to their desire to have their two allotments being Lots 174 & 175 on Plan of Subdivision No. 2645 re-subdivided. These allotments adjoin each other and are traversed by a road. Part of each allotment is on each side of this road. They wish to have one separate allotment each side of the road.

4. Approximately 10 years ago the Public Trustee, then the owner of the land, obtained a permit for the construction of a house on this parcel of land. It is part of an old and inappropriate subdivision and subject to a scheme of reconstruction whereby several lots on the subdivision are required to be consolidated into single allotments before they can be used for residential purposes. Permit P4150 gave permission for a house on the land, but contained a condition requiring the two allotments 174 & 175 to be consolidated.

5. After that the land was sold to Mr & Mrs Lewis. They have constructed their house on the land pursuant to the permit but, contrary to the permit, have not complied with condition 3 in that they have not consolidated the land.

6. Subsequently, in 1994, they obtained a subsequent permit allowing a dependent relative unit to be constructed on the land. Such a dwelling has been constructed, on the part of the land on the other side of the road.

7. It would obviously be a considerable fortuitous financial benefit to Mr & Mrs Lewis if they are able to create two separately disposable parcels of land out of the present lots 174 & 175. However, their professional advice during 1999 as to how this might be achieved has not really progressed.

8. The Responsible Authority, on the other hand lodged the enforcement order application to secure compliance with condition 3 of Permit P4150. That matter was ready to be set down for hearing at the time of the directions hearing on the 22 October 1999. I gave a direction for it to be set down but specified that the date for hearing was to be not less than six weeks away. I told Mrs Lewis, who appeared on that date, that the Respondents should decide promptly whether they wished to proceed with steps for re-subdivision, and if so that such steps should be undertaken quite soon. I delayed the date of hearing of the enforcement order application for six weeks to enable any proceeding contemplated before the Tribunal to be commenced. That might have occasioned a reconsideration of the timing of the hearing of the enforcement order application. It was contemplated that it might be set down for hearing, together with any such new proceedings.

9. In the event, the enforcement order application was not set down for hearing until the 20 January 2000, approximately three months after the directions hearing. There was no appearance by or on behalf of the Respondents on that date. Nor were there any new proceedings before the Tribunal or any indication that any steps at all had been taken in relation to the re-subdivision objectives of the Respondents. In those circumstances I heard the matter and made an enforcement order requiring that the Respondents comply with condition 3 of Planning Permit P4150 by consolidating Lots 174 & 175 on Plan of Subdivision No. 2645 within three months of the 20 January 2000.

10. Since then, the Registrar's office received a rather garbled and confusing document dated 7 February 2000 purporting to be an "Application for Review". It is on the form used for an application under the Planning and Environment Act to review a decision of a Responsible Authority in relation to an application for a planning permit. That was not the true nature of the application at all. It was interpreted as being an application under s. 120 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) for review of the decision to make the enforcement order. That was the matter before me on the 12 April 2000.

11. No very satisfactory explanation as to how it came about that there was no appearance by or on behalf of the Respondents on the 20 January 2000 was advanced at that hearing. However, it does appear, on the evidence, that the Respondents had not simply ignored the situation. They engaged a solicitor who in turn engaged a town planner. Furthermore, a real estate agent named Robert Gordon also became involved in the situation. He was the one who lodged the "Application for Review" dated 7 February 2000. This gave rise to a rather confusing situation. Up until that point Mr & Mrs Lewis had acted for themselves, and now it was not clear whether they were continuing to do so, or whether they were relying on one or more of the three professionals mentioned. It may be that each of the professionals thought somebody else was dealing with the hearing for the 20 January 2000. None of them was called to give evidence that might have explained all this. The town planner has prepared some documents for lodging with the Responsible Authority in December 1999. They were to seek to persuade the Responsible Authority, in its capacity as planning authority, to prepare an amendment to the planning scheme that would allow the Respondents wishes to be achieved. I am afraid that the Respondents' chances of having such a proposal accepted appear to be rather bleak. It appears to be contrary to the whole intention and purpose of the reconstruction scheme to create larger allotments in the area. Nevertheless, they are entitled to make the suggestion and to seek to persuade the Responsible Authority to adopt it. However, it appears that this document was never lodged with the Council and that several letters, drafted by the town planner, including in relation to the hearing on the 20 January 2000, were not posted. A draft letter to the Registrar of the Tribunal, apparently not posted, suggests that a request was being made to the Responsible Authority to consent to an adjournment of the hearing on the 20 January 2000. That draft letter is dated 21 December 1999. It certainly did not secure an adjournment, firstly because it was never received, presumably because it was never posted. Furthermore, it does not ask for an adjournment, but merely foreshadowed such a request if the consent of the Responsible Authority could be obtained. As the Responsible Authority did not receive any request to give such consent, it is hardly surprising that the consent was not worth forthcoming.

12. It is hard to understand why, if the solicitor and/or the town planner and/or the estate agent were acting in the matter that one or other of them did not take proper steps to secure an adjournment or to appear on the 20 January 2000. I accept that Mr & Mrs Lewis themselves, were somewhat distracted at the time owing to a family tragedy. Mrs Lewis said that she thought the matter was being taken care of by the town planner.

13. In considering whether the review should be allowed, I have directed my attention to whether there is any benefit or reasonable prospect of success if the matter should be re-heard. The situation really is that the enforcement order was properly and appropriately made, and should be made again if the matter was to be re-heard. This is not a situation where the making of the enforcement order prevents the Respondents from seeking the sort of remedy they wish if they decide that it is worthwhile pursuing the contemplated planning scheme amendment or some other course to achieve their desired result. It may mean that they have to consolidate the two allotments, which they should have done 10 years ago and which they were legally obliged to do as soon as they acted on Permit P4150 by building their house. They have been in contravention of the planning laws ever since and liable to prosecution. If they comply with the enforcement order, and condition 3 of that permit, by consolidating the two allotments, that will not prevent them then seeking

re-subdivision. I do not, for a moment, suggest that they are likely to succeed in that course, but their situation is not prejudiced by them carrying out their present obligations.

14. In those circumstances I decide that the appropriate course was to reject the application for review under s. 120 VCAT Act and leave it to the Respondents to consider for themselves, with the assistance of such advice they might obtain, whether it is worth their while trying to then re-subdivide the land.

Civil and Administrative Tribunal Act 1998

Environment Act 1987

Whittlesea CC v SM & LM Lewis [2000] VCAT 967

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Judgment (23 paragraphs)

Whittlesea CC v SM & LM Lewis [2000] VCAT 967 (30 April 2000)

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Legislation Cited (2)