In 1978 the Council approved a planning permit for the Woodleigh Heights cluster subdivision consisting of 45 three acre allotments and thirty acres of common property. Condition 8 of that permit required the subdivision to be completed in accord with the plans and submission forming part of the application. That submission defined the provision of a private reticulated water supply and reticulation system consisting of a lake, large header tanks and a reticulation system. As a matter of fact that proposed private “reticulated water supply” was entirely common property and additionally a condition of the permit was that it be maintained by the Body Corporate.
By virtue of the conditions of the planning permit and the Shire of Kyneton Interim Development Order by law this private “reticulated water supply” was required to be complete at the time that the Council sealed the plans in 1979 and the Registrar of Titles registered the Cluster Subdivision as registered cluster plan number CS1134 and the allotments became saleable. Upon the Registrar of Titles registering the plan the Body Corporate was incorporated and was known as Body Corporate Cluster Plan CS1134.
I purchased my allotments by terms contract in 1979.
In 1980 Buchanan applied for and was granted a Planning Permit to re-develop the cluster subdivision by dividing each existing allotments into three smaller allotments.
This new permit issued on 21st November 1980 and it made no reference at all to water and was granted on the basis of the existing private “reticulated water supply”
At the time each of these planning permits were issued the Woodleigh Heights subdivision was part within and part outside the Water Authorities waterworks district and many of the allotments were wholly outside that district as a consequence the Water Authority was prevented by law from providing water to the Woodleigh Heights subdivision except with the approval of the Governor in Council and no such approval was either sought or obtained.
When the Council received a Notice of Intention to subdivide land and that land was within the Water Authority’s waterworks district the Council was obliged by s.569B(2)(ac) of the Local Government Act to refer that subdivision to the Water Authority. Because the Woodleigh Heights land was not within that district the Council did not refer either the initial subdivision or the re-subdivision to the Water Authority and that is because the Council knew full well that the Water Authority could not lawfully provide a water supply to the land. (see paragraph 11 of the 1995 Statement of Claim and paragraph 11 of the Council’s Defence)
So in simple terms, the private “reticulated water supply” was the only possible “reticulated water supply” and it was approved by the Council alone without reference to the Water Authority because the Water Authority had no jurisdiction and could not lawfully provide water to the land.
The seed for all of the subsequent lies, deception and fraud by the Council and Water Authority were sewn at the time that the Council approved the Cluster re-subdivision in 1980. This approval was given by the Council with a secret and unlawful condition or “proviso”. That proviso was that the permit was issued on the secret and unlawful condition that all of the land be under one single ownership, namely the timeshare developer who at that time was not even incorporated, it did not yet exist.
Evidence of and the nature of this secret condition or “proviso” is found in three places;
firstly in the Water Authority’s minutes of 6th March 1985 wherein a letter dated 20th February 1985 from the Water Authority’s engineers Garlick & Stewart is fully transcribed, the letter and minutes recite;
“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.”
Secondly in a letter from WHRD to the Water Authority dated 29th October 1985 wherein WHRD said;
“The shire have allowed the subdivision to proceed on the understanding that it would be in the one ownership……”.
Thirdly in a report dated 18th January 1989 from the Shire Engineer, Graeme Wilson to all Councillors, at page 4 the report states;
“when it became known that land within the cluster subdivision was in multiple ownership the council was faced with a problem”
Now, the simple demonstrable fact is that at all material times everyone, including the Council, knew that the Woodleigh Heights land had multiple owners, my remaining six allotments were sealed by the council for re-subdivision separately from those owned by WHRD and separately from those owned by Buchanan and one original allotment was not re-subdivided at all because the separate owner, a Malaysian resident, did not agree or was not consulted. In addition a local Policeman built his house on one of the lots and additionally by letter dated 15th March 1982 from WHRD to the Council WHRD specifically advised that the land is “owned or under option to Woodleigh Heights Resort Developments Pty. Ltd……” The words “under option” expressly mean owned by persons other than WHRD and not yet acquired by WHRD.
The secret and unlawful proviso of the Council in reality was that all of the land be acquired by WHRD by fair means or foul and Graeme Wilson’s words “when it became known …….. “ are deceptive, the truth is that when it became known to the Council that WHRD, which did not exist until March 1981 had not acquired all the land the Council had a problem. (WHRD was incorporated as 12th Monelux P/L on 10th March 1981 and changed its name to WHRD a short time later).
In applying this secret and unlawful “proviso” the reality is that the Council took a risk, a gamble with me, my family, my land, that this at that time nonexistent, yet to be incorporated, company would be capable of acquiring all the land and would acquire all the land.
The seed of all of the subsequent lies, deceit and fraud were sewn on 21st November 1980 when the Council took that gamble and subsequently lost. After losing the gamble the Council and its friends, the Water Authority, PS&R, Buchanan, WHRD and a bevy of hanger on lawyers resorted to the outright fraud explicitly detailed in this book.
By letter dated 5th March 1981 Buchanan applied to the Water Authority for it to supply water to the subdivision, the letter stated; “My request ….. (i) As it is a cluster, that the Body Corporate purchase from the water trust 1,000,000 gallons annually and operate the internal water supply network themselves …… or (ii) that the trust operate and maintain the service.”
The Water Authority resolved to supply water to the Body Corporate.
WHRD was incorporated on 10th March 1981.
At that time the demonstrated crooks PS&R were from time to time solicitors for the Council and Water Authority and they were full time solicitors to WHRD, Buchanan and it seems every man and his dog who Buchanan dealt with.
As demonstrated above the crooks PS&R and Buchanan were well and truly into outright fraud, namely double dealing in land, they were also into other dishonest conduct and in particular schemes to avoid and outright breaches of the Victorian Sale of Land Act which I have demonstrated above.
In relation to the double dealing in land and in particular the fraudulent sale of Lot 28 it was critical to PS&R and Buchanan that I never be in a position to sell my land to anyone else other than either Buchanan or WHRD where it was assured that PS&R would act but preferably Buchanan and PS&R were demonstrably relying on me defaulting on the contract which was assigned to GCL/AGC, at this exact critical time in late 1981 PS&R were engaged to draft the Water Supply Agreement which the Water Authority had agreed to.
Quite clearly if the proposed Water Supply Agreement was with the body corporate then that agreement could not possibly be or provide an impediment to my selling my land to anyone at all and PS&R and WHRD were well aware of that fact. So PS&R, apparently with the connivance of at least the Water Authority and WHRD but probably also the Council, drafted the agreement as between WHRD and the Water Authority and not between the body corporate and Water Authority as had been applied for by Buchanan and resolved by the Water Authority.
The Water Authority and WHRD executed that Water Supply Agreement dated 1st January 1982. At that time everyone was thoroughly aware that the agreement was unlawful in every conceivable respect, it provided for a water supply to an area where everyone knew the Water Authority could not lawfully supply, it purported to give control of the common property being the water tanks and reticulation system within the cluster subdivision to the private company WHRD and everyone knew that WHRD was not “the owner” of all of the allotments and never could be “the owner” of the common property and so WHRD was not and never could be “the owner” as required by the Water Act for such agreements.
Everyone involved also knew and apparently intended that this Water Supply Agreement could be used as a tool to fraudulently protect their respective interests, PS&R knew and intended that it would protect them from the consequences of their fraudulent land deals and the Council and the Water Authority knew it would protect the Council’s secret and unlawful “proviso”. We can only surmise as to whether these disparate parties were aware of each other’s separate agendas but it is certain that PS&R and the Water Authority and WHRD and Buchanan were all well aware of an effect of the manifestly unlawful Water Agreement, namely that it could be fraudulently used to prevent the sale of my land to anyone other than WHRD.
On the face of it when Brian Noel Murphy for WHRD made the threat that it would have water denied to my land if I tried to sell to anyone other than WHRD it did so knowing full well that the Council and the Water Authority to a man, elected, appointed and employed, would give effect to that threat because the reality is that only the Water Authority had the statutory standing to give effect to that threat and the Council had to do its part by concealing and denying the fact well known to it, that I/my land did have entitlement to and a right of access to the common property “reticulated water supply” and in particular the one that Council had approved in 1978.
On the face of it there was a prearranged probably criminal conspiracy where each of WHRD, the Water Authority and the Council would carry out their respective roles to ensure the “proviso” and coincidentally or by design also protect PS&R.
The critical concept for the reader to take forward is that the manifestly unlawful Water Supply Agreement purported to give lawful control and ownership of the water supply and reticulation system within the cluster subdivision to WHRD. That the Agreement fraudulently purported to give lawful control of the “reticulated water supply” within the cluster subdivision to WHRD is the critical point.
To give effect to this scheme to defraud the Council necessarily had to deny and/or conceal the fact of and facts of the private “reticulated water supply” it had approved in 1979 and which water supply was replaced by the water supply from the Water Authority.
A major factor in assisting this little group in their fraudulent scheme is the preconceived mindset of most people in this modern day and age, private “reticulated water supplies” are unknown, everyone knows that Water Authority’s approve and provide water supplies, Council’s do not. The problem for the Council and Water Authority was that I was a 1950’s country boy, I knew of such things, sometimes just a cooperative between a group of farmers or in a small township and when I purchased my Woodleigh Heights Land I was aware of the private “reticulated water supply”. My problem was in finding out and demonstrating that it was approved by the Council and constituted a private “reticulated water supply” for the purpose of issue of Building Permits and the Council did its part by well and truly fraudulently denying and concealing that fact until the proof was discovered by me in 1995 after travelling the tortuous path described in this book.
So a further critical point to carry forward is that each and every representation by the Council or the Water Authority or their respective lawyers to the effect that the Water Supply Agreement was lawful or that the water provided by the Water Authority was a lawful “reticulated water supply” includes a fraudulent denial and concealment of the fact of and the facts of the private “reticulated water supply”.