Justice Osborn's Reasons for Judgment are so comprehensively and cohesively wrong You be the judge. |
The Woodleigh Heights Planning Permit No 2191
This page describes the aspect of Justice Osborn's Reasons for Judgment in relation to the planning permit for the initial subdivision of Woodleigh Heights. In essence, Justice Osborn said that the planning permit did not have to be complied with, and that the 1978 water supply specified by the planning permit was not an approved water supply. This effectively ignored, denied, concealed and/or made wrong the fact that the 1978 water was approved for the purpose of the Planning Scheme and building permits and I was entitled to that supply.
Osbone was thoroughly aware that Greg Garde QC had misled the Administrative Appeals Tribunal by falsely representing that the "Water Supply Agreement" was lawful and enforceable. For the purpose of ignoring, denying, concealing and making wrong the fact that Garde had miseld the tribunal Osborn held that the timeshare company had control of the water and had denied me access to that water. In order to make this fabrication cohesively fit Osborn had to falsely assert that the 1978 water supply was not a required water supply. This page sets out how he did that. Osborn's misrepresentations in relation to the Planning Permit were complimentary and necessary to to his misrepresentations in relation to the 1982 water supply which are now set out on the gravamen page.
Layman's synopsis
|
In relation to Woodleigh Heights, at the hearing before Justice Osborn, Dixon Delany and Ahern repeated the overt fabrications which they had submitted to Master Efthim. These fabrication were repeated at paragraphs 94 to 98 of their Second Outline of Submissions [complete outline here]
Whereas Middelton, by his abject neglect had completely and utterly failed to put the true cause of action to Efthim I did not when it came to Osborn.
I spelled out in clear detail that the the question related to the 1978 reticulation system and that Dixon, Delany and Ahern had relied upon deception and obfuscation to deceive Master Efthim so even Justice Osborn with his dextrous sleight of mind could not rely on the deceptive submissions of Dixon, Delany and Ahern.
Osborn instead fabricated his own reasons to find against me however the reasons fabricated by Osborn depended upon holding as true the fabrications of Major General Garde to the effect that the 1982 Water Supply Agreement was lawful and enforceable and that the timeshare company WHRD owned and operated the water supply and reticulation system. [Garde's fabrications here]
In order to coordinate his fabrications as set out on this page Osborn also fabricated his Reasons in relation to the "cause of action" (gravamen) of my previous 1995 proceeding.
Background
In 1978 the Woodleigh Heights land was situated in an area where the Council planning policy prevented subdivision into allotments of less than six acres unless the allotments were serviced by a "reticulated water supply". The situation was:
- the land was part outside the Waterworks District of the Water Authority and therefore could not be supplied with water without the approval of the Governor in Council.
- the land was entirely outside the Urban District of the Water Authority and could not be supplied except by Agreement pursuant to section 307AA of the Water Act.
- there was simply no water main from the Water Authority to service the land.
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 is expressly set out in the submission here, here and here. [Complete submission]
The land was zoned Rural Residential and proposed useage was for "a detached house on each allotment". This is expressly set out in the submission and in the application for permit. It is also set out in the working papers of the Council when it considered the application for permit. These working papers expressly state 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. Drinking water was to be provided by roof rainwater tanks.
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 for the Planning Appeal 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]
In addition, section 569B(7) of the Local Government Act specifically prevented a Council from sealing a plan unless the subdivision was permitted by the IDO. The IDO, in turn, as set out above, prohibited a subdivision except in accord with a planning permit. It follows that a subdivision not in accord with such planning permit was prohibited by the IDO so a Council was obliged to refuse to seal the plans of a subdivision not completed in accord with the planning permit.
What Justice Osborn said...
At his paragraph 160 Justice Osborn said of condition 8 of Planning Permit 2191:
"In my opinion the reference to the development in condition 8 is in fact a reference to the cluster type residential development forming a part of the subject matter of the permit. Condition 8 does not impose a requirement which must be met prior to the sealing of the plans of subdivision. The permit conditions and in particular conditions 1 and 3 make clear that in the first instance the allotments could not be cleared or used for purposes other than pastoral use, without the further permission of Council. Nevertheless, it was envisaged that the cluster type development would result in time in the construction of dwellings. Condition 8 imposed a precondition to use of development upon the land not upon the subdivision of the land." (my emphasis)
Now the problem for Justice Osborn here is... the law and the facts. From the things set out by me above it is manifestly unlawful to subdivide land except in accord with the planning permit, which obviously includes condition 8.
The Plans and Submissions referred to in Condition 8 set out every single aspect of the proposed subdivision. It was condition 8 which required it to be a Rural Residential Cluster Subdivision under the Cluster Titles Act. It was condition 8 which required the allotments, roads, lake, tennis courts, rising mains, storage tanks, waste disposal, and every other aspect of the proposed subdivision to be carried out in accord with what the Council approved.
Justice Osborn's paragraph 160 is nonsense.
On Justice Osborn's rendition, the subdivider did not have to do a damn thing except file the plans, get them sealed, have the Registrar of Tiles issue titles then, sell the land, and then it was up to the poor unsuspecting purchaser to make the land useable. This is exactly what section 9 of the Sale of Land Act, which was dependant upon s97 of the Transfer of Land Act, which was dependant upon section 569 of the Local Government Act, was carefully designed to prevent. In the 1940s and 1950s, developers were able to do this sort of thing. These subdivisions became known as "heartbreak subdivisions". Sections 9, 97 and 569 of the Sale of Land Act, Transfer of Land Act and Local Government Act respectively were specifically designed and coordinated to prevent this specific thing. Justice Osborn's Reasons are not only manifestly wrong, they are offensive.
The sealing of plans of subdivision before the works have not been completed is the exact method of avoiding the "effect" of section 9 of the Sale of Land Act which is alleged in the 2005 Statement of Claim.
This is the specific misfeasance and misbehaviour alleged by me in the proceeding being judged by Justice Osborn. On Justice Osborn's aberrant Reasons it's OK for developers to hit and run.....
Many of Justice Osborn's paragraphs which purport to set out the facts in relation to planning controls, planning permits and related matters are also misleading. For example, as his paragraph 157, Justice Osborn says:
"It is apparent the application was not for conventional subdivision in accordance with minimum areas fixed by reference to water supply. Rather, it was for a cluster subdivision with site specific communal provisions. The application was not one which put forward, an "approved reticulated water supply for the purposes of the Shire of Kyneton Planning Scheme". It was expressly put forward that the cluster subdivision would not meet the minimum required in this regard for conventional subdivision." (my emphasis)
This paragraph by Justice Osborn is simply false and misleading. It was a conventional subdivision carried out in accord with the provisions of the Cluster Titles Act 1972. It had allotment sizes which were not permitted under the Council's planning policy unless they were serviced by a "reticulated water supply". Because no such supply existed from the Water Authority or at all, the application was expressly put forward on the basis that the subdivision would in principle comply with the Council's planning policy by providing its own water [see at star]. These things are also clearly set out in a submission which the Council and Water Authority made to the Planning Appeals Tribunal [see alongside the two stars]. Notably it was Ian Lonie of Maddock Lonie & Chisholm which presented this submission. [full submission]
Relying on his own concocted rendition of the planning permit, Justice Osborn said at his paragraph 156:
"...I am satisfied that the plaintiffs' case is premised on a misreading of the relevant planning permit."
Notably Osborn omitted to refer to clause 6 of the permit which required all private facilities, including water, to be under the control of the body corporate. Plainly the 1982 water supply was not. It appears that Osborn must have held that this condition did not have to be complied with either when, by implication, he held the 1982 "Water Supply Agreement" and water to be lawful. [see gravamen]
Justice Osborn fabricated his Reasons so as to provide verisimilitude to this purported conclusion. There are numerous examples of this sort of thing in Justice Osborn's Reasons, but enough is enough on this aspect..
Justice Osborn's Reasons blatantly misrepresent the law and the planning permit in order to discredit the 1978 private water supply as an approved supply. His Reasons also hold that the 1982 water supply was lawful [see gravamen]. Together these things are indistinguishable from the scheme of the conspiracy between the Council and Water Authority to implement the "proviso". |
Justice Osborn's full Reasons for Judgment [also available on austlii database]
**********
Top of Page ------ Menu Page