Paragraphs 32, 33 and 35 from: http://www.austlii.edu.au/au/cases/vic/VCAT/2011/2220.html
The hearing of this case extended over two days. On the first day of hearing the responsible authority and the objectors presented their cases. The case was part heard with the evidence and submissions on behalf of the applicant company remaining to be heard. During the interim suggestions of possible problems with this proposal attributed to council engineers were raised. I am not impressed. This case had, in any event, been complicated by incorrect advice offered by the council and its engineers in relation to drainage questions. Apparently, there was once a drainage pipe that ran across this site. At some stage this arrangement was reconsidered when a two metre wide easement down the eastern side boundary was proposed. Provision was made for there to be an agreement under s 173 of the Planning and Environment Act 1987 for a two metre easement in that location. This agreement was executed but never registered at the Titles Office. That omission is the responsibility of the responsible authority.
The company was told that there is no pipe or drainage works in the easement so that it could be built over. This occasioned a redesign to make use of that area. Then the council informed the company that there was, after all, a pipe in this locality so that the area could not be built over. The applicant company redesigned its proposal.
Another aspect, arising between the hearings, is that the council engineers have apparently, and belatedly, decided that they would like to acquire control over a further one metre wide strip along the two metres wide easement. The suggestion is that there should be no building over a three metre wide strip. This is said to be on account of a “local law”. Perusal of the local law shows that it makes no such provision. The only basis for it is some adopted council resolution or policy in relation to this one metre wide acquisition of control. There is no proposal to acquire such a right on any basis that would involve just compensation to the land owner. In my opinion, there is no legal basis for the claim to an extra metre width along that two metre strip. At least none was suggested. I note that the local law and the “policy” are not part of planning laws. I do not think that they create any legal requirement in real property law that detracts from the property rights of the owner of the land.
Glen Eira Debates 
December 9, 2011 at 10:22 AM
There are two issues here. One is the competence and expertise of the engineering department. The second is the lack of what I can only assume to be procedural manuals or adherence to such manuals by individuals. There’s also the issue of reliance on dubious and hidden policies that are drawn out of the hat when all else fails. For me at any rate it raises the real question of how many of these policies are legal and binding?
This is not the first time that there have been serious errors made in planning. We have the recent heritage episode as the perfect example. Here again the member accuses council of failing to register with the Titles office. There are simply too many errors and too many excuses. Ultimately this will ensure that residents have to pay compensation to developers and I wouldn’t blame them for suing if they have been lead astray by erroneous advice. Redesigning plans and the time involved all means money. They are entitled to compensation. Residents are entitled to expect that the people who make these decisions have the necessary expertise. Recent events would imply that many don’t.
December 9, 2011 at 2:37 PM
Time and time again we are told what a slick administration we have and good old Andrew has not only employed the best but also has his finger on the pulse.
And here we have an instance where VCAT is not impressed with Council’s performance and the developer has every right to sue Council for the tens of thousands of dollars redesign and project delays have cost.
Top this off with the spurious claim for an additional metre – the town planner representing Council and the administration did not do their homework. Utterly incompetent and negligent.
How much did all this cost? As a bench mark, the infamous heritage case cost $9000 for legal representation and $3000 for the planning panel – the hearing lasted 2 hours.
December 9, 2011 at 6:11 PM
Another stuff up! Typical inefficiency and incompetence.