3:39 AMResidents pay for council mistakes again and again.
At the 27 May 2014 meeting, Manningham council decided to install a drainage pipe that should have been installed over 50 years ago.
While many may think this a minor issue, residents effected by this drain will be charged most of the cost. For some, this amounts to a considerable amount money. The residents, on the other hand, claim that it was a council oversight in the first place and Manningham council should install the drain at their own cost.
Manningham council, however, will not admit to any responsibility for the fact that the drain was never installed.
I think Manningham Council is not presenting the facts fairly and this has the effect of misleading people. Crucial information is sometimes hidden away in obscure places in the minutes, for example, as comments in the cells of spreadsheets and is not clearly explained to the residents.
First a bit of history.
This land was subdivided back in 1956 in what is now Manningham. The subdivision was to include a drain running along easements on private property.
While this drain is on Manningham council plans, it was never built (p1480 3.1, p1502, p1447 1.11).
This missing drain did not cause that much of a problem for the residents over the past 50 years. Some residents had raised concerns and problems regarding water drainage with Manningham council. They were told that drainage on their own property was their own responsibility (p1509). Several residents put in drainage pipes at their own cost (p1509, p1447 1.4). One resident spent some $18,000 to install drains (p1509).
It was when one block was subdivided for higher density development that developers revealed that the council drain did not actually exist (p1446, 1.1, 1.2, p. 1447 1.4).
Manningham Council again puts themselves first.
The council needs to remedy this situation. Manningham council says many times in their minutes for 27 May 2014 that they are legally responsible to provide adequate drainage for these homes. Clearly they have not done so. Also Manningham council has approved planning permits for higher density housing development where adequate drainage clearly does not exist (p1447 1.4).
Manningham council could end up in court over this. And Manningham Council tends to pay attention when lawsuits could arise where they are clearly at fault (p1445 Summary dot point 4, p1447 1.3 and 1.5).
Manningham council points out that the construction of the missing drain will:
"provide protection from potential claims arising under the Water Act 1986" (p1457 10.2).
Manningham council themselves admit that drainage on this subdivision is not adequate (p 1447 1.3, 1.8, p1477 1.6).
It appears the fact that Manningham Council might be sued for their oversight is the impetus behind the council wanting the drain built now. Even though more than 80% of effected residents object (p1449 1.23, p1516 1), Manningham council is determined to built it. Manningham council has pointed out that several properties have suffered water damage and the council has said in the minutes of 27 May 2014, that this damage is consistent with land not having adequate drainage (p1447 1.3).
It appears that Manningham council is primarily building this drain to get themselves off the hook legally. They are installing this drain and leaving it at that. They do not intend to connect existing drains on any of the private properties to their new drain. The council argues that this is a private expense, which is is. However, the point is that until the existing private drains are connected to the new council drain, the houses and land will continue to experience water damage problems.
And surely it would not be that hard to connect existing private drains that extend to the easement to the new council drain. They would have the excavators there, much of the earth removed and the drains would be exposed. Must the council really cover over the new drain, re-plant trees, replace fences and so on, for the ground just to be dug up again and the council drain uncovered again so a private contractor can connect the private drains to the council drain. It all seems a bit wasteful.
What the council seems to be doing is making sure they have done their job and then leaving it at that.
No conflict of interests – really!
In the minutes of the resident submissions meeting (p1474 5) and elsewhere, Manningham Council says that "No conflicts of interest were identified or declared".
This is not entirely accurate. It may be true in the sense that no individual members of Manningham council have a conflict of interest in this matter, but the council as a whole certainly does. Manningham council stands to be sued over this issue and might pay very large costs to repair damage. Manningham Council has a serious conflicts of interest and cannot fairly and even-handedly represent the interests of the residents in this matter.
What Manningham council can, and in my opinion is doing, is unreasonably pressuring residents to co-operate. Evidence of this can be seen in the submissions meeting where not one objection carries weight with the council. All are put aside and nothing is considered a reasonable objection (p1516). Not one thing said by residents caused the council to alter from their plans (p1475 10). I get the impression, as I read the minutes of the submissions meeting, that council members and staff are not ready to consider the objections fairly and they repeatedly apply 'boiler plate' type responses without giving the objections their due consideration.
In particular 46 and 46a Thea Grove should question the 'special' benefit they might derive from the new council drain.
It was when this one block was subdivided that the council discovered the drain did not exist. So the council made them build, at their own expense, their own private drain from the corner of their property to the drain at the road. This privately built drain was to provide adequate drainage for the new units on this one block.
I think they should question the benefit will they derive from the new council drain they are being forced to pay for. They already have adequate drainage. Their existing private drain is adequate otherwise Manningham Council would have been negligent in allowing the building of the units to continue. It is true that this one block currently has water problems however Manningham council point out that is due to private drainage pipes within the block (p1483 3.10) and not their privately built drain.
What 'special' benefit does 46 and 46a Thea Grove derive? The council does not say.
The new council drain will be a larger diameter but it will service many more blocks of land. For instance, the current private drain is 100mm in diameter. The new council drain will be 225mm in diameter. The new council drain will be 5.06 times the capacity but it will have roughly 7 times the area to drain. It could be easily argued that the benefit 46 and 46a Thea Grove derive from the new council drian is actually REDUCED. (Note also that 46 and 46a Thea Grove at the lowest point of the new drain.) Also there is no 'connection benefit' because all drains on the block would already be connected to their own private drain.
So how does Manningham council address the issue of this private drain?
'The outfall drainage from 46 and 46a Thea Grove to Boronia Grove exists and is beyond the scope of the currently proposed scheme...' (p1482 3.7).
No it is not!
It is key to determining whether or not these properties derive any special benefit from the new council drain. It appears, to me at least, that there is no 'connection benefit if there is no need to connect anything to the new council drain and any 'drainage capacity benefit' is actually reduced.
It is clear, again to me at least, that these two properties are better served by their private drain than they are by the proposed new council drain.
Manningham council does not want to hear this. What does Manningham council say when these properties complain that they are paying twice for the drain? Manningham council shows no concern at all (p1482 3.8).
A similar argument could be applied to 17a Boronia Grove which also built a 100mm private drain (p1476 1.2). The new council drain will be 225mm in diameter which is 5 times the capacity but will drain approximately 7 times the area. Manningham council disagrees and appears to think that 17a Boronia Grove will get enhanced property protection with less drainage capacity (p1476 1.2).
It appears that if Manningham council says these properties will get a 'special' benefit, and that is the end of the argument.
How will Manningham Council guarantee this drain is built?
Manningham council has decided to pay 45% of the total cost of $149,758.09 to install the new drain (p1446 B). Some may say that this is the council accepting partial responsibility for the missing drain, and that could well be the case. However, there are some other facts that also need to be considered.
By law, if the council offered to pay less than 33% of the cost of the new drain, the residents could veto it (p1446 para 5). That is, they could say they did not want the drain to be built. And many of them don't want to pay for it and say they don't want it at all (p1449 1.23).
But Manningham council simply cannot allow this to happen. If the residents were to veto the building of the drain, questions would continue to be raised over why the drain was never built in the first place and Manningham council could find itself in court because of the planning permits it has issued.
If Manningham council pays 33% or more of the cost, then they can force the issue (p1449 1.23, p1450 2.1). Manningham council then denies the residents the right to veto the project and can insist that residents who benefit from the new drain pay the remainder of the cost. If the council pays 33% or more, there is no way the residents can get out of it. The residents simply have to pay the balance of the cost.
By paying 33% or more Manningham council can dictate the outcome. However, if Manningham Council were to pay, for example, just 34%, then they would appear a bit calculating in the eyes of many residents. Even if they paid for 36% they may not escape criticism. No, they have to be a bit more generous and come up with a percentage that attracts no criticism. And 45% is probably a good number.
What I am saying is that there was quite likely a lot of careful thought and consideration that went into that 45% figure. It may not be an admission of any responsibility at all. It could be a figure arrived at so they could guarantee they get themselves off the hook legally and still keep face with the public.
Most of the residents complained to the council and many said that the missing drain was the council's fault and the council should pay the entire cost.
It is interesting to go through the resident's letters to the council. They reveal insights into the discussions that took place. They describe arguments put forward by residents and the responses from council.
Unfortunately not much detail of these discussions is provided. Often the arguments and council responses are just alluded to in the letters by way of reminder. Also Manningham council does not spell out the details of their replies to the residents in the minutes.
But let us take a look, as best we can, at some of the residents arguments and council responses alluded to in the letters.
Excuse number 1 – The year 1958.
Please consider this small comment in one of the letters.
"We understand that the subdivision of the subject lands in Thea Grove/Boronia Grove pre-dates 1958 as per council reports..." (p 1498).
It appears that one reply to residents by Manningham council was that the subdivision pre-dates 1958. What the council was asserting, we are not told. However the resident seems to accept the assertion Manningham council was putting forward.
It could be that Manningham council is suggesting that the council is somehow not responsible for drainage work prior to 1958. What are they getting at?
What happened in 1958? Let me quote from the Victorian Government public records office:
"The powers and responsibilities of local authorities are established in the Local Government Act 1958 (No.6299) and in related legislation concerning such matters as building control, land ownership, health, town and country planning, land valuation and transport regulation. Local councils are empowered to make and enforce bylaws on a wide range of matters including road and traffic regulation, building construction, health, drainage, sanitation, environmental protection and planning. However these powers are shared with the State Government and there is currently disagreement between the State and some local authorities as to their respective powers in matters such as planning."
So in 1958, local councils were given the power to make and enforce their own by-laws. And as can be seen above, local councils were able to make and enforce their own by-laws in matters of drainage.
So are local councils not responsible for works done prior to 1958? There is something that is being carefully side stepped by Manningham council.
Prior to 1958 local councils still had a job to do. They had responsibilities in certain areas and they had laws to enforce. These laws may not have been their own by-laws. That is, they may not have devised these laws. The laws may have been established by state government. But, none the less, the job of local government was to enforce these laws. Just because local government did not devise these laws does not mean they can take no responsibility for what they did prior to 1958.
Let us take a look at a different part of the same document from the Victorian Government public records office quoted above:
"Other urban areas were constituted under the Municipal Institutions Act 1854 which provided for the establishment of Municipal Districts. In 1863 under the provisions of Act 27 Vic., No.184, Municipal Districts were reconstituted as Boroughs with responsibility for roads, streets, wharves, cemeteries, public health, water supply, drainage, charitable institutions, recreation facilities, libraries, pounds, licensed premises, markets, slaughter houses, weights and measures."
So local governments in Victoria have been responsible to provide adequate water drainage since about 1854, well over 100 years prior to 1958.
I should point out that responsibility for the supply of water was moved from the councils at a later date. Again from the Victorian Public records office.
" Its powers in relation to waterworks and water supply were abolished by the Public Works Statute 1865."
The provision of adequate water drainage, however, was not removed from local governments.
So you can see that any argument based on this Act of 1958 by Mannigham council may sound superficially plausible, but in fact it is quite wrong.
Local government had a job to do prior to 1958. And it appears that the predecessors of Manningham council did not always do their job.
Excuse number 2 - No one can prove we said that!
Manningham council's plans for this particular subdivision show a water drain built along easements on private property. But that drain does not exist. How did Manningham council come to be in possession of these plans?
As far as I can tell, they probably inherited them from the former City of Doncaster and Templestowe when local councils were reorganised in 1994.
You will note that Manningham council accepted these plans on face value. They accepted them as accurate and did not check to see if they accurately reflected work done in the field (p1502).
Did Manningham council believe their plans were accurate? They most certainly did (p1502). They approved two building permits for higher density dwellings on the exact same subdivison of 1956 based on the belief that the plans were accurate and the drain actually existed and was adequate (p1447 1.4, p1502, p1510).
They also told residents that the drain existed without ever checking that the work had been done in the field. The council claims that their plans are 'the best information available to the council' (p1480 3.2). No, they are not the best information available. The best information available is a pipe in the ground that the council never bothered to check was really there. So Manningham council certainly took these plans as being correct.
There is more evidence that Manningham council believed their plans were accurate and reflected accurately work done in the field.
First, they told residents that if there was water problems on their property then it was their responsibility to fix (p1509). They are most likely assuming that the council had done it's job and built the drain as shown on the plans.
Second, one resident said they went to the council more than once and spoke to different council staff who each told him that the drain actually existed (p1480 3.2, p1502).
Is there any doubt the council thought this drain actually existed? They saw the drain on the plans and told residents the drain existed. They approved building permits for higher density dwellings based on these plans. To Manningham council, the drain certainly existed.
Now this is where Manningham council confronts adult responsibility.
Manningham provided information to people who then made decisions based on that information. The information was incorrect and many people incurred considerable expense as a result.
So what does Manningham council have to say about all this?
First they simply sidestep the issue and hope no one will notice (p1492 8.4, p1494 8.7). See p1487 5.1 where one resident points out that, after being told that drainage was their own problem, they spent some $18,000 to put in private drains. But apparently it was not their problem and the council had given them false information. So how does the Council respond? They answer an entirely different question. That is, they did not answer the complaint at all.
See p1482 3.7 where a resident confronts the council and say that council staff told them false and misleading information that the drain existed.
What does Manningham council have to say about this?
"They can find no record of providing this advice" (p1482 3.7).
Do you keep written records of conversations you have with your customers or clients over the counter? In particular, do you do this when you believe what you have said is true and accurate?
This is what Manningham council resorts to. Manningham council is desperately trying to avoid responsibility in this matter.
I have worked for private companies where comparable issues came up. These private companies were much more willing to accept responsibility and fix mistakes.
I worked for a food manufactures a little while ago. One of our customers broke a tooth when eating some of our product. There was no blaming, no finger pointing, no desperate avoidance of responsibility. As adult people, the management and customer decided it was best if the company paid for all dental expenses rather than get distracted by a court case. It was a excellent example of accepting responsibility and working things out to everyone's benefit.
The details of my example are certainly different. But the essential point of contrast is how Manningham council desperately seeks to avoid responsibility.
It appears that Manningham council has taken legal advise on this matter and know they have to distance themselves as much as possible from the claim they provided false and misleading information that caused other people to incur significant costs.
And this is the best they can come up with!
"I did not do it. No one saw me do it. You can't prove a thing."
Manningham council rarely keeps and also often cannot find records that they know exist relating to what they have done. See 3.6 on the same page where again Manningham council cannot find records regarding a different issue.
Also if Manningham council did find any records, just how forthcoming would they be when they could be sued based on that information?
Manninghams records are not really needed. Several residents could testify that the council provided that information.
Excuse number 3 – but people didn't want the drain built!
Why wasn't this drain built? In the minutes of meeting of 27 May 2014 and in the minutes of the Residents Submissions meeting, the council said:
"At the time of subdivision, easement drainage was not required to be constructed within this catchment... In catchments were property owners objected, drainage infrastructure was not completed, even if proposed drainage plans had been completed." (p1480 3.1).
Then the council goes on to say that:
"Historically special charge schemes for the provision of drainage have been reliant on the majority of property owner support and funding" (p1480 3.1).
"Historically, the construction of drainage is subject to property owner support and funding." (p1480 3.1).
The plans of subdivision appear to have been drawn up and included this drain, otherwise why does this drain appear on current council plans? If the drain was on the plan of subdivision, then the developer was required to build the drain at the time of subdivision of the land, contrary to what the council says.
But Manningham council is saying the drain was never built even though it was on the plans because the 'owners of the land objected' (p1481 3.4).
Just who were the owners of the land at the time and why would private land owners object to the drain being built on what was then vacant land?
These land owners were nowhere to be found. This is an important point. Just where were all these landowners who insisted that the drain not be built? (p1480 3.1) The simple truth is they were no where to be found! They were not there. The land was subdivided in 1956. Land was being sold to private buyers later on. Prior to the land being sold to private buyers, the council was dealing with the land developer not residential owners. So was it the land developer who objected to building the drain?
This idea that the residential owners opposed the building of the drain simply is not true. By the time the first residential owner arrived, the drain should have been completed by the developer.
The plans of subdivision had been drawn up and most likely had this drain on them. At the time, the council was not negotiating with residential owners. The drain should have been built by the developer (consider p1477 1.6).
This excuse about the construction of the drain requiring the support and funding of owners would only be applicable if the land had been subdivided and sold to residential home owners and no drain was ever on the plan of subdivision.
Manningham council is trying to confuse the two situations in the minds of the residents. The essential difference is if the drain was on the plans of subdivision in 1956, then it should have been built by the developer (as is generally the case today p1477 1.6).
However, for the sake of completeness, I also should mention that today, the situation has changed slightly for developers.
Today there are provisions for developers not to build certain parts of a subdivision. A friend of mine works at a different council and he is a wonderful source of information. He pointed out that it is possible for some parts of a subdivision not to be built if they are believed not to be essential at the time of subdivision.
If something on the plan of subdivision is agreed not to be built, then the developer must give the council the money they would have spent constructing it. The council will then hold this money until the drain, path, etc. is required and then use this money to carry out the work.
The essential point is that this provision has been put in place only recently. When land was subdivided back in 1956, if something was on the plan of subdivision, it needed to be built and it was the councils job to ensure it was built. As my friend told me, back then in 1956 developers could not negotiate with the council to omit certain items on the plan (consider p1477 1.6).
I mentioned that residents pay for council mistakes again and again.
How is that so?
Well, if the missing drain was on the plan of subdivision and was meant to be built back in 1956, then the residents would most likely have paid for the missing drain when they purchased the land. The developer would most likely have included the cost of the drain in the price of the land sold to private buyers.
Next, residents encountered problems with water on their land and some had to pay a large amount of money to put in pipes. One resident claimed to have spent some $18,000 on drainage pipes. So here many residents paid a second time.
Then the council discovers their drain is not there and forces, (yes forces) residents to pay a large part of the cost. Some residents are paying up to $9000 as their contribution to the installation of the missing drain. So residents pay a third time. But that is not the end of it.
Then the council takes care of number one again. The council is only installing the drain. They are not connecting any of the private drains on the various properties to their new drain. That is, they will provide adequate drainage, as required by law, and will be off the hook legally and cannot be sued (p1461 5, p1462 16.4, 1463 19.2). However residents will have to pay a fourth time to connect the drains on their properties to the council's new main drain.
"There will be an additional cost to property owners to connect their private drainage systems into the proposed drain once completed. This cost will vary depending on the state and location of the owners existing private drainage systems. If the property owners’ private drainage systems currently discharge in close proximity to the proposed easement drain then connection can be undertaken as part of the construction works, at private owner cost." (p1457 10.4)
See also p1517 4.a
So what do you do if you discover a problem with your drain, etc.
The first thing is not to tell the council.
A friend of mine lives in Flemmington on a recent development (Yes, there have been recent housing developments in Flemmington). He had problems with storm water and discovered that a drain had not been put in properly.
I told him not to tell the council about it. They will make him pay through the nose to rectify it. It is far cheaper just to do it yourself if you can.
And that is probably the best thing for the residents of Thea and Broronia Groves to do also. If you read the council minutes you will notice that the council admits that the residents of Boronia and Thea Groves can put their own drain in if they wish (p1496 9.8).
They add that it will be their responsibility to maintain and repair the drain in the future and the drain will not be to council specifications. But that is not so bad. If a pipe is put in properly how many times will you have to repair it? Once every 90 years?
If you look at the costs for the drain the council is proposing, it is a large amount of money. And if the residents took care of this problem themselves, as they have done in the past (p1493 8.5), then many costs could be eliminated.
Manningham council - long acustomed to waste, sloth, self preservation and indifference - can see no problem with the high cost they are charging ratepayers and say it is an entirely reasonable amount (p1454 4.7, p1463 19.6, p1490 7.4).
Les us take a look at the breakdown of the cost on page 1470 and note some of the costs that could be avoided if the owners took care of the problem themselves.
I will just list some possible costs that could be avoided.
Site Establishment 3,000.00 (This sounds like a cost for the sake of cost.)
Environmental Management 1,000.00 (The contractor can take care of this. It is all
private land. See also p1448 1.15, 1.16.)
Surveying and Setout 2,000.00 (Drain goes down the middle of the easement.
Easements are marked on titles.)
Traffic & Pedestrian Management 3,000.00 (The drain is at the back of private land.
No pedestrians should be there nor should
they have access).
CCTV inspections of completed drain 2,000.00 (Get an honest contractor)
Project supervision 17,986.00 (Get an honest contractor)
Contingency 11,979.00 (Get fixed price quote)
That isn't a bad saving. I am sure that if residents get some competitive quotes and do some of the clearing and rebuilding of sheds, fences and replanting of trees themselves they could save even more.
But unfortunately we do not do such things today. We are developing a bad habit of running to government every time something goes wrong and expect them to fix it. We pay dearly for this.
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