History of the Journey to Date

John and I came back to Australia in 2012.  We landed in Melbourne and bought a home on title in an exclusive Melbourne neighbourhood that had a long private driveway.  The driveway ran along an existing rail line with homes built along one side.  For us, renovating this potentially beautiful and historic property was intended to keep us busy long into the future.  Little did we know this purchase would change our lives. 

Before settling the purchase, we inspected the property and noticed there was a great amount of graffiti plastered on a deteriorating, wooden fence, near the rail line and away from the public eye.  It seemed to have become a ‘public’ pathway, rather than the private driveway as stated in the title deed.

 

Rail line

 

Historically, in the late 1800s and then again in the early 1920s, they widened the rail line and with the adjustments included the pathway alongside the private driveway.  The title itself was from 1920 and clearly listed the driveway as a registered part of the property we were buying.  We decided, for future security, to replace the fence and gates to protect our property.

 

When we filed the necessary paperwork for a permit, the city council refused to grant it.  We later discovered this was because one of the neighbours opposed the fence because they intended to continue using our driveway as a shortcut through our property.

 

However, the land technically was owned by the railway line. and they defended our right to exclusive access to the property due to concerns for safety.  Over the years the fence and gates had deteriorated, and the gates broken through by vagrants and drug users who had plastered the rickety fence with graffiti and used the alley for drugs and human waste.

 

We installed a fence and secure gates at each end.  Subsequently, one evening at some time past one AM, the council removed our fence and the gates.  This was, of course, not lawful and we immediately entered a legal proceeding to restore our fence.

 

In a townhall meeting the council stated they would not permit or restore the fence, even though it was not their land.  Public sentiment supported us through a survey (conducted by the city council) where only 18 percent expressed a desire for open access (meaning no fence or gates) and fully 64 percent wanted no public funds spent to continue the battle.

 

Therefore, the rationale to keep the pathway open to simply provide a shortcut was voted down.  The police wanted it closed because of how dangerous and busy this driveway (that was near Chapel Street) had become for them.

 

Political Change

 

The rail authority said the council had no interest in this land as it was an agreement with the rail authority and property owner (us), not property of the city.  When the political leadership changed in Victoria, the Vic Track rail authority changed their alliance to support the new council against our request.

 

The property is in an area designated for medium to high density building although a few of the original, historically authentic homes still stand there.  Lots of pressure to develop the home.  There was no heritage listing in the street.  There were only a few, potential heritage homes in the area but because they were in a location that was filled with other/ near amenities, railway, shops.  The railway legal counsel assured us that the driveway was for our fencing it in and have gates at both ends.

 

The home was fronted by Victorian style and the rest of the building was yet to be renovated.  When we attempted to get building permits, council moved to secure ministerial oversight of the property.  There were three other properties in the street.  Six years earlier they had done an assessment and the properties were not designated heritage, meaning we could go ahead with our plans to develop the property.

 

Restorations Begin

 

We began our restoration activities.  It was run down.  And our improvements were ‘blessed’ by Council approval.  However, with a change in government….

 

We installed a new fence and then VicTrack aligned themselves with Council and said we must remove the fence and bring VicTrack into the dispute. 

 

However, we had three building permits issued in 2013 (veranda, pavilion/ orangery and extension for a kitchen and master bedroom and ensuite in the back).  There was a staged building permit (demolish the back, the second floor, etc.).

 

Heritage Overlays

 

Despite the government being aware of this, the council was actively focused on applying Heritage controls over our property alone.  Appointed an overseer to manage the heritage action who had no heritage experience, to write a report.  He admitted that there was nothing in tack and that the project was nearly completed.  Nothing in tack that was heritage protection.

 

In December of the previous year, Council passed a heritage overlay without any of our involvement or knowledge.  They followed a process, but it was an abuse of power for an improper purpose.  The report came out in 24 April stating there was nothing left intact to protect with a heritage overlay.  This was rushed so they could gazette it.

 

Official Review of Activities

 

A VICAT building tribunal appeals board was established to review the case.  Because council were, behind the scenes, intending to establish this heritage overlay was to impose controls to the rear part of the building that had NO heritage features ever, just a back wall.  They imposed heritage overlay on the entire building.

 

Council was working behind the scenes to get the hearing quashed.  In this VAB, there were three qualified members one of which was an officer of the court, and they overturned council’s refusal and supported our stand.  Council was not happy with this decision.  They had a right to appeal and instead, contacted our building manager to ‘down tools’ although he did not initially because of the building permits.

 

Down Tools

 

Jan 2016 all work had ground to a halt.  All works at the front were complete but not the back.  But the back was what was open to danger.  They, in essence, ensured our property was exposed to danger.

 

December 16 to Jan 2016 – they went to the USA for a holiday, and she went to Chicago in Feb.  In March the Victorian Supreme Court heard the case. (we do not have unlimited resources).

 

The Attack

 

A week later the 18 March 2016 the attack happened.  There was no barrier any longer on the back of our property.  When my husband opened the back door an intruder was standing on their doorstep and stabbed John several times. 

 

VicTrack stated the land was public land, not theirs.  And during the hearing they produced documents that it was designated a highway.  We produced official documents that clearly showed a fence was installed. 

 

It was a miracle John survived.  Happened in the early hours of the morning and so the traffic was manageable to rush him to Alfred Hospital.

 

Throughout 2016 we were trying to recover. I had our builders reinstate a fence and council then demanded through summons to remove the fence.  (The judge stated in the audio that it was to be a fence or was a fence).

 

We were dragged back into court and charged us to remove the fence and we appealed this decision.  (without the fence the council was liable to pay compensation because it was a public highway).  As a private entry, not a public highway – they did not rely on the registered official documents.

 

Attacker Caught

 

A lease agreement from 1925, the area was officially, fenced off.  They eventually caught the attacker but not until after he attacked others.  Because our building could not be secured, and our builder was targeted by Council and refused to take action to establish protective measures.  So we were forced to appeal to VICAT.  (BAB – govern the building framework).

 

Ongoing Challenges

 

We did approach VICAT and we produced official documents to prove that there had been no fence in the back, as we had requested.  As a witness, Demi, was berated and attacked as a witness.

 

The BAB reported their support of the quality of the build after inspecting the build and allowed the build to continue.  Simultaneously of a court date, the trial of the attacker (who got 11 years).  Planning scheme and the incorrect heritage overlay

 

On 18 July the BAB determined we had a right (since December) to continue to finish the building.  On the 20 of June, we were asked to ignore the appeals board.  During the new tribunal (at which she was bullied) and prevented to present the BAB decision.  And set a final hearing for 29 September and would not allow us to withdraw.

 

He would not be bound by the BAB.  So, she approached the Supreme Court for intervention in this after-the-fact heritage overlay.  And determined that the Heritage overlay was intended to stop us.  Nevertheless, the Supreme Court supported the Council against us.l.