This is a tale of two families. For eight months they have endured a problem neighbour, whose activities are denying them the right to (as the Victorian Law Reform Commission puts it) “quiet enjoyment” of their properties.
One family recently gave up the struggle, sold up and moved out of the family home in which they had lived quietly and enjoyably for 16 years. The husband, forced to move his cabinet-making business from a custom-built shed located a few seconds from the home’s front door to the Dromana industrial estate, now has a half-hour drive to and from work.
The other family, running a general store, is battling on against the neighbour – and the authorities who, one would assume, have the power to set matters right, and have had during the eight months this sad episode has continued. The authorities have so far provided little but what Bandicoot describes as “white noise” in the face of the problems.
The matter concerns a perfectly legal business in Red Hill, Red Gum BBQ. But its septic system often emits nauseating stinks because it malfunctions, and the restaurant’s patrons block customer access to the general store by ignoring the one-hour parking limit outside the store.
Further, its meat cooking stove emits clouds of odorous smoke into surrounding properties because, it is claimed, its flue is not properly filtered.
The law entitles residents and businesses to “quiet enjoyment” of their premises. This applies particularly to residents, who the law says are entitled to peace without interference, according to a legal dictionary. Disturbance of quiet enjoyment can be a nuisance, leading to legal action. Not good for neighbourly relations.
The dictionary continues: “Examples of nuisances interfering with the comfort, convenience, or health of an occupant are foul odours, noxious gases, smoke, dust, loud noises, excessive light…”
The comfort and convenience of a health inspector who visited the family property before it was sold was dramatically affected when he caught a whiff of the sewerage. He doubled over and dry-retched. The new owners may well invite him back before Christmas for another sniff.
The foul septic is clearly an EPA matter. Or is it a shire matter?
Work to remedy the septic system has involved the loss of at least 12 of the onsite car spaces – the number specified in the restaurant’s permit is 37, now reduced to about 25 to cater for the patron limit of 85. The overflow patrons park in Arthurs Seat Rd, frequently against double lines up the hill towards the recreation reserve.
A recent busy time was the Father’s Day weekend, when it is believed that the restaurant got bookings for several hundred.
Illegal parking is clearly a police matter. Or is it a shire matter?
The two families had contacted their councillor, David Gill, who referred the problems to council staff. Little had happened after months, so finally the families took their problems directly to the 12 September council meeting by way of questions from the public gallery – the right of all ratepayers.
The general store proprietors’ question was answered by shire planning services manager David Bergin. He said:
“This particular site is located within what we call the Commercial 1 Zone, which allows a restaurant to open up as of right. So there’s no planning permit approval that was granted for this particular operation commencing on this site.
“Council is aware of the other issues regarding septic tank and on-street parking and I suppose that it’s a multi-faceted approach that other areas of the shire are working with the Red Gum BBQ such as the environmental protection and our local laws also regarding the on-street parking. But I just need to make it clear that there is no planning permit for the operation of the restaurant per se.”
The family forced to move out were told much the same story by Mr Bergin:
“Again, as there is no planning permit requirement for the operation of the restaurant, a number of these items that you’ve raised in your question regarding odours and the like are all within our environmental protection unit.
“We are aware of them and we are working with our environmental health colleagues to investigate some of these odour concerns that have been raised with us.”
What can be gleaned from these responses is that the restaurant does indeed have shire-imposed conditions on its permit to operate, conditions related to onsite parking, proper effluent management, patron numbers, noise, and so on.
The premises appears tardy in abiding by its conditions. It is pleasing, however, to learn from Mr Bergin that the shire is “working with the Red Gum BBQ [on problems] such as the environmental protection and our local laws also regarding the on-street parking” and that “some” of the odour concerns are being investigated.
Mr Bergin’s responses to these questions can be put in the context of a comment he made the previous week, at the Planning Services Committee meeting on 4 September.
At that meeting councillors questioned officers on the application by Hao Yang Australia P/L to convert ‘Hilltonia’, a modest B&B in Browns Rd, Fingal, into “a leisure and recreation facility (hot springs) with ancillary day spa and ancillary restaurant”.
Here is the relevant exchange:
Cr David Gill (Red Hill ward) to Ms Rosa Zouzoulas planning services team leader: “One condition I notice is to only allow the wellness centre etcetera – the main part – patrons to use the restaurant, instead of people off the street. With [the shire’s] poor record of enforcement, how do we propose to enforce that condition?”
Ms Zouzoulas: “I guess we will be relying on, I suppose, on … that the applicant is doing the right thing” (Cr Gill interjects: They’re self-managing it, are they?) … “it is like that with any application … you issue a set of permit conditions, you expect the applicant to abide by the permit conditions.
“If they are found for any reason, from anybody visiting the site, maybe a regular routine inspection, and the like, then [the shire enforcement group] will take action and require them to comply with the relevant conditions.”
Mr Bergin: “Can I add to that as well, Madam Chair, through you, to Cr Gill; our compliance team is one the of the most vigilant – and most active – throughout Victoria. Our compliance team spends a lot of time at VCAT, it spends a lot of time at the magistrates court, and we are looking to expand the resources in that area so that we can carry out a few more proactive investigations as well.”
It is worth noting that the Hilltonia project – far more complex than Red Gum BBQ – was recommended to be approved and that it would have been controlled by dozens of conditions set out in 10 A4 pages.
Councillors refused it on eight grounds, including five related to its effect on the Green Wedge Zone; its impact on the area’s topography; “unknown environmental issues”; and that the proposal “does not respect the landscape character of the area”.
Among the conditions shire staff had proposed placing on Hilltonia are several relevant to the Red Hill restaurant. They are:
“The [Hilltonia] use and development must be managed, to the satisfaction of the Responsible Authority, so that the amenity of the area is not detrimentally affected through … the emission of noise, artificial light, vibration, smell, dust, fumes, smoke, vapour, steam, waste water, or waste products.”
That would deal with the Red Hill restaurant’s septic odour and smoke problems. Was no such condition placed on the Red Hill restaurant?
“Exhaust ventilation systems must comply with Australian Standard 1668:4 – ‘The Use of Ventilation and Air Conditioning in Buildings’.”
This would also cover several complaints the operation at Red Hill prompted – if it or a similar condition was imposed on the restaurant.
“Activities conducted on the premises must not cause a nuisance to neighbouring properties. This includes but is not limited to nuisance resulting from the premises, water, animal, including a bird or insect capable of carrying a disease transmissible to human beings or refuse or noise or emission or state or odour or condition or activity or other matter or thing.”
That cover-all condition, if in place at Red Hill, could be cited to solve the neighbours’ problems. It could be described as the “love thy neighbour” condition.
If such conditions – which the shire clearly is legally entitled, and required, to impose on activities such as restaurants, operating as-of-right or otherwise – were not applied to the Red Hill restaurant, then they should have been.
If they were imposed, they must be enforced, vigilantly and actively, as Mr Bergin put it on 4 September. And promptly. Not, as is now the case, five or six months after the complaints have been made
This is not an isolated case. A series of conditions breaches at G’Gallant restaurant years ago were not acted on. Indeed, a shire officer was quoted as saying that the shire was reluctant to prosecute in cases where jobs might be affected.
More recently, VCAT last year virtually told the shire it must investigate non-local items being sold at Tully’s Corner Produce Store in the Green Wedge Zone south of Frankston. Then, by inference, VCAT indicated the shire must enforce any breaches of its conditions.
In its decision of 19 July last year, VCAT said, in part:
“There is a wide range of bottled and canned lines of food and drink that clearly do not originate from the locality, but come from elsewhere in Victoria, Australia and around the world.
“Amongst the goods from Italy there is bottled mineral water. Olive Oil is not produced in this locality. Other goods come from Scandinavia, Turkey, Poland and other places.
“There is a butcher shop section and a seafood section selling seafood from South Australia and Queensland. There is a delicatessen, dairy section and refrigerated goods.
“The range of package teas and coffees on display clearly do not come from the land or adjacent land. Even in relation to fresh fruit and vegetables, which might be regarded as primary produce, the offering includes goods that are not grown in this locality including, for example, oranges and bananas.
“Primary produce, especially if limited to produce from this area, now only amounts to a small proportion of the total offering. The above is by no means an exhaustive list of what is an offer for sale.”
Bandicoot believes the shire is still considering what action to take against Tully’s.
A law not enforced is no law at all. Worse, it abandons those who ultimately rely on enforcement for their health, happiness and income and signals to others that they may breach such laws with impunity.