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Overt Concealment - Woodleigh Heights

Layman's synopsis

  • When the Woodleigh Heights land was subdivided, water could not be supplied by the Water Authority so the planning permit was issued with the condition that water be provided by a private water supply consisting of a lake, tanks and reticulation to each block.
  • First the Council and Water Authority concealed the fact that this water supply was approved for the purpose of issuing building permits and instead, to force me to sell my land to the timeshare company WHRD, told all and sundry that my land didn't have water.
  • I found out about this approved private water supply in 1995 and went to court to recover the losses from being forced to sell the land "without water".  The case was settled by supposed mediation because I was told I would lose the case.
  • Then I found out what the Council and Water Authority were really concealing.  The private water supply had not been completed when the plans were sealed. The lake and tanks were there for all to see but what couldn't been seen was that the reticulation system had not been completed as required by law.

Background

In 1978 the Woodleigh Heights land was situated in an area where the Council planning policy prevented subdivision into allotments of less than three acres unless the allotments were serviced by a "reticulated water supply". The situation was:

So, in short, it was both illegal and impossible for the Water Authority to provide water to the land at that time.

In recognition of this fact, Buchanan made a submission that the land could be serviced by a private "reticulated water supply" so as to comply with the "spirit" of the Council's planning policy. This was expressly set out in the submission here, here and here. [Complete submission]

The land was zoned "rural residential" and the proposed usage was for "detached house on each allotment". This was expressly set out in the submission and in the application for permit. It was also set out in the working papers of the Council when it considered the application for permit. These working papers expressly stated that the planning permit was approved in accord with the submission and that the "... corporate body be responsible for ..... all private facilities including water ......." The Council's standard condition 2 applied which expressly envisaged the construction of "dwellings".

The private water supply (the 1978 water supply) set out in the engineers report section of the submission consisted of a lake, rising mains, storage tanks and reticulation to each allotment.

The Council issued Planning Permit number 2191 on 15th November 1978 in exact accord with the working papers and the application and the submission. Condition 8 of that permit required that "The development be carried out in accordance with the plans and submission which formed part of this application".

In a submission prepared and delivered by Maddock Lonie & Chisholm in 1988 to the Planning Appeals Tribunal, the Council and Water Authority said:

"One of the conditions of that development required water to be provided by a large on-site dam and internal reticulation". [complete submission]

To give force to a planning permit the Shire of Kyneton Interim Development Order under the Town and County Planning Act (IDO) said at its clause 2(b) to the effect "no person shall subdivide land except in accordance with a planning permit issued by the Council". [complete IDO]

For the purpose of enabling the developer Kenneth Raymond Buchanan to avoid the "effect" of section 9 of the Sale of Land Act 1962, the Council sealed the plans of subdivision either knowing full well or not caring as to whether or not the subdivision had been completed in accord with the planning permit and in particular knowing or not caring as to whether or not the private system of pipes being the reticulation system had been completed.

I purchased 10 of the allotments in 1979. Then in 1980 the Council issued a further planning permit on the secret and unlawful "proviso" that all the allotments become owned by a timeshare company.

Initial concealment Woodleigh Heights

For the purpose of implementing the "proviso", in 1982 the Water Authority entered into an unlawful "Water Supply Agreement" with the timeshare company (the 1982 water supply).

For the purpose of giving effect to the "proviso", the Council and Water Authority fraudulently represented that the "Water Supply Agreement" was a lawful and enforceable agreement AND my land was not entitled to a "reticulated water supply".

For this purpose they needed to and did conceal the fact that the 1978 water supply was a "reticulated water supply" approved for the purpose of the issue of building permits.

They concealed this fact during the entire period 1984 until my land was sold in 1989. They concealed the facts from AGC and myself while preventing the sale of my land by both AGC and myself. The Council and Water Authority concealed the facts from the Ministerial Inquiries and from the Planning Appeals Tribunal.

This overt and fraudulent concealment continued until August 1995 when I gained access to the documents which showed that the 1978 supply was an approved supply. The 1995 Supreme Court proceeding was based on the fact of this fraudulent concealment which is now settled fact and cannot be denied or repudiated by either the Council or Water Authority. [see paragraph 4 of the indorsement to writ in the 1995 Woodleigh Heights Supreme Court proceeding. Full writ and indorsement here] The 1995 Woodleigh Heights proceeding proceeded on the fact of that fraudulent concealment.

The sealing of the plans of cluster subdivision included a representation to all people that the subdivision had been completed according to law. As and from August 1995 this included a representation to me that the water main for the 1978 water supply had been laid when the plans were sealed in November 1979.

Continuing concealment

As and from August 1995 the Council and Water Authority continued to conceal the fact that the water mains had not been laid as required by law.

In October 1995 I issued the 1995 Woodleigh Heights proceeding. The Statement of Claim detailed the 1978 water supply and asserted my entitlement to that supply. It also detailed the fact that the 1982 water supply was unlawful and that the Council and Water Authority fraudulently represented that my land did not have entitlement to a "reticulated water supply" when it clearly did.

The 1995 Woodleigh Heights proceeding particularly detailed that the 1978 water mains had been laid.

During the course of the 1995 Woodleigh Heights proceeding, neither the Council nor Water Authority raised the defence that I could not be entitled to the 1978 water supply because it had not been completed as alleged by me. Instead the Council admitted to my entitlement and concealed the fact that it had not been completed. The Court ordered mediation and Terms of Settlement were reached in what I now know to be fraudulent circumstances.

In summary, no mediation occurred, the Mediator convinced me that I would lose and be bankrupted by the costs and the Council and Water Authority were prepared to pay me a little bit to go away. After terms of Settlement were signed I was told by a barrister friend that I had been hoodwinked. Subsequently the Council and Water Authority were late paying so I issued a Notice of Trial. In reply the Council and Water Authority sought Court orders to enforce the Terms of Settlement.

During the hearing in the Practice Court, the lawyers for the Council and Water Authority showed me a "reticulation plan" which showed that the water mains had been laid in 1982 and not in 1979 as alleged by me in the Statements of Claim. This information was fatal to my case in the 1995 Woodleigh Heights proceeding so I did not appeal the orders of the Practice Court. I filed a Notice of Discontinuance as ordered however I advised the Council and Water Authority that I would be pursuing the fraud (once I understood it).

During the entire course of the 1995 Woodleigh Heights proceeding, the Council and Water Authority concealed the fact that the water mains had not been laid. They did so by failing to raise the truth as a defence and by not discovering (not making available) the "Reticulation Plan" as a document in the proceeding. The 2005 proceeding was initiated after I finally discovered what had been concealed since 1979.

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