Courts On Trial

Utterly Corrupt Justice System of Victoria, Australia.

Water, water, everywhere...

The Water Authority did, by resolution of its members, specifically deceive AGC and me for the purpose of implementing the "proviso" by fraud.

Layman's synopsis

The Council issued a planning permit to develop the Woodleigh Heights subdivision into a timeshare resort. The developer, Ken Buchanan, did not yet own all the land in the subdivision, but intended to purchase the lots that he didn't already own. So the planning permit was issued on the "proviso" that all the land would become owned by the timeshare company Buchanan would form.
The land was in an area that could only have water from the Water Authority under an agreement with the owner. In order to protect the "proviso" and ensure the land could not be sold to anyone else, the Water Authority entered into an agreement with the timeshare company WHRD which unlawfully gave WHRD control over the water in the entire subdivision.

I had agreed to sell my lots to Buchanan, but then I discovered that Buchanan was a crook and refused to sell my land to him. He threatened to send me bankrupt.

Within two weeks of this threat, the Council and Water Authority both began to apply financial pressure by dishonestly representing that I was responsible for constructing roads and services in another subdivision, Tylden Rd, where I had purchased 15 lots.

After Buchanan had been removed as a director of the timeshare company (WHRD), I signed contracts to sell my land to WHRD. Then WHRD defaulted on those contracts, and when I said that I would sell my land elsewhere, WHRD threatened to have my water rights removed.

Believing the "proviso" was safe, the Water Authority had set about legitimising the water supply by changing the water boundaries to include my land in its Urban District.

Then, with the financial pressure beginning to bite, my mortgagee AGC arranged to sell some of my land. With the "proviso" at risk, the Council and Water Board told the real estate agent the land had no water, despite the fact that the paperwork which would give my land water had already been sent to the Governor in Council, and was merely waiting approval. The planned auction was cancelled.

AGC was asking for an explanation about the water situation, but the Water Authority delayed their response while they went about changing the water boundaries again, taking the land back out of Urban District, so that the illegal Water Supply Agreement with WHRD would be back in force. Under pressure for a response, the day after sending the plan excising the land to the Governor in Council, the Water Authority told AGC the land could not have water even though the new plan was not yet approved.
Regardless of all these shenanigans, what I didn't know at the time was that my land always had a right to water – the 1978 water supply approved as part of the planning permit. This was deliberately concealed from me and from AGC.

Background

In 1979, I purchased 10 allotments on the cluster subdivision at Kyneton known as Woodleigh Heights. In 1980, without my knowledge or consent, the Council issued a planning permit to Kenneth Raymond Buchanan for a cluster re-development which permitted dividing each of the existing lots into three smaller lots. This planning permit was issued on the secret and unlawful "proviso" that all the lots in the cluster subdivision become owned by a timeshare company which Buchanan was about to set up for the purpose of the re-development.

Subsequently, for the purpose of ensuring the "proviso", the solicitor who was financing the timeshare resort, the Council, the Water Authority and the timeshare company got together and drew up an illegal "Water Supply Agreement" (1982 water supply). This agreement was between the Water Authority and the timeshare company Woodleigh Heights Resort Developments Pty. Ltd. (WHRD), which by that time had been incorporated.

I had given Buchanan an option to purchase all my land, and he in turn had given WHRD an option over it. In March 1982, WHRD advised the Council that it either owned or had an option over all of the lots on the Woodleigh Heights subdivision. However in April 1982, I discovered that Buchanan had sold some land twice, including some of mine, and that his solicitor, who was also solicitor, Palmer Stevens & Rennick (PS&R) had acted in those sales. PS&R was also financier for WHRD and solicitor for the Water Authority. I advised Buchanan and his solicitor that I would no longer deal with them (including not sell my land to Buchanan) and that I was going to report them to the police. In reply Buchanan threatened violence and said that he would send me bankrupt.

Within two weeks of this threat the Council and Water Authority both began to dishonestly represent that I was responsible to construct roads and install the water supply to the Tylden Rd subdivision where I had purchased 15 lots. Within a short while, both the Council and Water Authority unlawfully forced me to pay for the construction of the roads and waterworks to that subdivision. They said that they were doing this because "other owners" had enquired as to when the works would be done. This was a lie.

In 1983, after Buchanan had been removed/sacked as a director because of the double dealing, WHRD entered into contracts to purchase my Woodleigh Heights land. WHRD then defaulted on those contracts. When I said that I would sell my land elsewhere, WHRD said that it would have my water rights removed and render my land worthless and unsaleable to anyone else. The Water Authority then advised me that the Woodleigh Heights land was in an area where water could only be supplied by agreement (i.e. outside the Urban District) and that it had a private water supply agreement with WHRD and my land could not have water except with the consent of WHRD.

I later discovered that the land was not only outside the Urban District but also part outside the Water District. This meant the land could not be supplied with water from the Water Authority without approval of the Governor in Council and such approval was neither sought nor received. In recognition of this known fact, in 1978 the Council approved the subdivision on the basis of a private reticulated water supply (the 1978 water supply).

As I now know, the Tylden Rd land was also outside the Urban District, and could not be supplied without agreement either.

In simple terms, the Water Authority had forced me to pay for a water supply to land which could not be provided with water except under a Water Supply Agreement and no such agreement existed. At the same time, the Water Authority was representing that my Woodleigh Heights land was outside the Urban District and could only be provided with water under an agreement, and that agreement was with WHRD, and therefore water was unavailable to my land except with the consent of WHRD.

The Water Authority forced me to pay for an illegal water supply to the Tylden Rd land and denied me water at Woodleigh Heights because it had an illegal Water Supply Agreement with WHRD.

In 1984 my land was under contract to WHRD. There appeared to be no further need for the unlawful Water Supply Agreement so the Water Authority went about legitimising both illegal water supplies. On 8th November 1984, the Water Authority sealed a plan which enlarged its Water District to include the Woodleigh Heights land, and also increased its Urban district to include both the Woodleigh Heights land and the Tylden Rd land. [On the plan the Woodleigh Heights land was in the red area sticking out at the top and the Tylden Rd land was in the red area at the bottom.]

Under section 208 of the Water Act, all the land within an Urban District was entitled to water from the Water Authority. By expanding the Urban District, the unlawful Water Supply Agreement became irrelevant and the unlawful supply to Tylden Rd became legitimised.

So all seemed sweet, the "proviso" seemed safe. Then a problem arose: my mortgagee, AGC, wanted to sell six of my lots and the "proviso" was in danger again.

All hands on deck - the "proviso" is in danger...

My land was scheduled to be auctioned by AGC on 17th November 1984. However AGC's attempt to sell the land was successfully sabotaged in a coordinated effort by the Council, the Water Authority and WHRD.

After cancelling the auction, AGC wrote identical letters to both the Council and Water Authority and enquired as to the availability of sewerage and mains reticulated water.

The Water Authority wrote to AGC by letter dated 7th December 1984 and said:

“The matter is complicated because of both the Board’s existing water and wastewater agreements with the management of Woodleigh Heights and the Shire of Kyneton’s requirements for the issue of building permits.”
“The Board’s Engineers, Garlick and Stewart, are to report back to the Board after consideration of all of the factors involved with your proposal.” (my emphasis)

The Council responded by letter dated 20th December 1984 and said:

“......the issue of building permits is to remain conditional upon the development being serviced by reticulated water and sewerage.”

At the time of writing these coordinated letters, both the Council and Water Authority were aware that:

all allotments within the subdivision were entitled to the 1978 "reticulated water supply",
the Water Authority had sealed a plan which increased the Urban District so my land was soon to be entitled to water pursuant to s.208 of the Water Act,
sewerage was not a condition of any Planning Permit.

Hmm, the engineer didn't get it quite right...

For the purpose of "commenting" on AGC's request for information, Mr. Peter Charles Everist of the Board’s Engineers, Garlick & Stewart wrote a letter dated 20th February 1985, apparently after having been “coached” by the Council and/or Water Authority in respect to “all of the factors”.

This letter, amongst other things, says:

“Internal reticulation is the property and responsibility of Woodleigh Heights Resort Development.”

This is false, but consistent with the misrepresentations of the Water Authority. Internal reticulation was clearly in the areas marked "common property" and was therefore manifestly common property, owned by the Body Corporate.
“All of the land in the development is known under the name of Woodleigh Heights Resort Development Pty. Ltd. Notices of Acquisition and Deposition have not been received by the Shire……..”

This is not a usual thing for a water engineer to concern himself with! Note that he uses the word "Deposition", it appears he was not aware that the document is in fact a Notice of Disposition. The land was known by both the Council and Everist to be under a number of owners, not just Woodleigh Heights Resort Developments.
“The shire sealed the subdivision into separate lots and further subdivision into clusters with the proviso that the lots would remain as part of the total resort development.”

There was no "proviso" related to the initial subdivision in 1978. The further subdivision however was done with that secret and unlawful "proviso".

Peter Charles Everist, water engineer, then went on to say:

“The resort is not in the Board’s Sewerage District or Urban Water District.” (my emphasis)

This was only true because the plan sealed by the Water Authority on 8th November 1984 had not yet been approved by the Governor in Council or gazetted. However, the Water Authority knew that the plan had been forwarded to the Governor and would soon be gazetted, and the land would be within the Urban Water District, and s.208 of the Water Act would apply.
“It is considered that reticulated water and sewerage would be available ………. subject to the conditions of the Agreements with the Board and under the ownership of Woodleigh Heights Resort Development Pty. Ltd”.

This established that, from an engineering or water supply point of view, water could be made available. However Everist, water engineer, added the rider that the supply should be subject to the Agreement and only under the ownership of WHRD, when the Water Authority, and possibly Everist, knew full well the agreement was unlawful.
.
“However, if lots 7, 10, 12 and 27 are under different ownership then it is recommended that the Board refuse the supply of reticulated water……” (my emphasis)

So Everist, water engineer, recommended against the supply of water based upon ownership rather than water pressure considerations. I say there are excellent grounds for a belief that Everist was coached by the Council and Water Authority to say that water could not be made available. I don't believe he checked the rate records or the file containing notices of disposition (or “deposition” as he calls it). As a water engineer, Everist said that water could be made available. Water engineers do not form policy as to who does or does not get water according to ownership.

The letter from Peter Charles Everist was transcribed into the Water Authority's minutes of 6th March 1985 and the Council and Water Authority had a major problem in respect to implementing the “proviso”.

Despite being coached, the water engineer said that, from an engineering point of view, water was available to my land.

The plan extending the Urban District had been sealed and filed by the Second Respondent and was soon to be gazetted, after which my land would be statutorily entitled to water.

Faced with these problems, and their need to give effect to the “proviso”, at its meeting of 6th March 1985 the Water Authority resolved “that no action be taken”. In other words, it resolved not to respond to the letter of AGC at that time. [see bottom of page]

Then, at its meeting of 3rd April 1985, the Water Authority recorded the fact that the Woodleigh Heights subdivision was inside the Urban District and properties within the Urban District (including mine) were entitled to water. At that meeting the Water Authority then, without explanation, went on to resolve to excise the area which included Woodleigh Heights from the Urban District.

The plan extending the Water District and the Urban District of the Water Authority was gazetted on 27th March 1985. So, as and from that date, my land had an absolute right to water pursuant to s.208 of the Water Act 1958.

As the Water Authority had, at its meeting of 6th March 1985, resolved to take no action, and accordingly did not respond to AGC, then AGC again enquired by letter dated 9th April 1985 and said:

“Your formal communication conveying the Board’s determination to our request of 29/11/84 would be appreciated.”
“It is believed that the matter was dealt with 6/3/1985.”

Don't worry, we'll move the goal posts...

This new request from AGC was transcribed into the Water Authority's minutes of 1st May 1985.

Knowing that water was available, both from an engineering point of view and from s.208 of the Water Act, the Water Authority's minutes of 1st May 1985 merely recorded “received” in relation to AGC's request, apparently determining not to respond to AGC until they had "fixed" the problem that my land was entitled to water by law.

At the same meeting of 1st May 1985, in full knowledge of the things set out above and its duty to advise AGC that water was available by statutory right, the Water Authority went on to seal a further plan excising the Woodleigh Heights land from the Urban District thereby intending to remove the statutory right to water from my land.

By letter dated 3rd May 1985, in knowledge of the above, the Water Authority wrote to AGC and said:

“….. I advise that the Board is not in a position to supply water to allotments for which you are mortgagee in possession in C.A. 41 occupied by Woodleigh Heights Resort Developments Pty. Ltd.”
“The Board does not wish to repeat itself in this matter as you appear to be requesting.”

Three days later, by letter dated 6th May 1985 the Water Authority forwarded the new plan diminishing the Urban District to the Department of Water Resources for subsequent approval by the Governor in Council and gazettal.

The Water Authority's letter of 3rd May 1985 was received by AGC on 6th May 1985. Mr. Des Roberts of AGC was offended by the response. As a consequence, on 7th May 1985, Mr. Roberts telephoned the Council and Water Authority's Joint Secretary, Mr. David Parkinson. The handwritten notes of Mr. Roberts say:

“S/W [spoke with] Parkinson. This is inadequate and cheeky, this is only official refusal and needs to be enlarged upon. If we are being forced to sell without services …… property will probably not attract a bid let alone an adequate price.”

By letter dated 7th May 1985, one day after sending the new plan to be actioned by the Governor in Council and in full knowledge that the plan had not yet been gazetted, the Water Authority, having been prompted by Mr. Roberts, again replied to AGC and said:

“Water has been supplied to Woodleigh Heights Resort Developments Pty. Ltd. as an outside of the water area agreement on the basis that all costs for construction of the mains were paid for by that company.”
“The Board therefore has no mechanism by which the allotments referred to may be supplied with water except with the agreement of Woodleigh Heights Resort Developments Pty. Ltd.”
".... a Shire permit to build will not be issued ..... .... unless the blocks are supplied with water."

At the time of writing this letter, the Council and Water Authority both knew it to be false and intended to deceive and defraud, a) because the water supply agreement was unlawful; and b) because the land was still entitled to water until the new plan was gazetted; and c) because my land was always entitled to the 1978 water supply and there was no impediment to building permits.

The plan excising the Woodleigh Heights land from the Urban District was not gazetted until July 1985. The land was squarely in the Urban District, and entitled at law to water from the Water Authority, until that time. It of course remained entitled to the 1978 supply, but they concealed that as well.

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