By Dongyun Kwon and Callum Ludwig
The case of a 72-year-old widow in the Yarra Ranges, who has been frustrated and disappointed with a lack of communication two local councils, is an important reminder of the need for good complaint handling, according to the Victorian Ombudsman Deborah Glass.
Yarra Ranges resident ’Robyn’ said the last six years were mentally and emotionally exhausting to go through stress and pressure on top of the experience of losing friends and neighbours and her own house.
“I lost my 27-year home at the time of Black Saturday and the rebuilding of my house has not been easy. I lost my husband due to his protracted illness as well,” she said.
“When the community recognised the 10-year anniversary of Black Saturday, there was much reflection on the fact that most people had moved on with their lives. I found it hard that I was still stuck in the morass of rebuilding with no clear pathway to resolution.”
Robyn rebuilt a house with a detached building for her son, who at the time required the dialysis machine installed in the building for up to seven hours every second day, and thought she had the correct building permit.
The Ombudsman detailed the saga in her report which was tabled in State Parliament.
Her builder applied for the building permit on 3 July 2014 to build a shed, not a habitable space, and to the Mitchell Shire Council which was not Robyn’s local council, believing it would be ’faster’. The Ombudsman’s report noted that, “Particularly in response to natural disasters like the Black Saturday bushfires, Municipal Building Surveyors can help other councils by issuled building permit, to ensure a faster rebuild“.
Recognising the problems this process can cause, changes to the Building Act were implemented in September 2016 to prohibit builders from appointing Building Surveyors on an owner’s behalf.
To make things worse, the Mitchell Shire Council sent a copy of the permit to the wrong person with the wrong address and the Ombudsman’s Report says “Council records demonstrate that Robyn also never received a copy of the Building Permit from the Council“.
The Ombudsman also made it clear that her report made “no adverse comment about the Municipal Building Surveyor who issued the building permit as the building permit issued was consistent with the application“.
Robyn did not notice that she did not have a right building permit until 2017 when Yarra Ranges Council issued a building order requiring Robyn to address health and safety concerns before continuing to use it as a habitable building.
Robyn required at least nine extensions to give her time to understand and address Yarra Ranges Council’s concerns before the building order was withdrawn. Under Yarra Ranges Council’s policies, Robyn was required to reapply for extensions every 60 days, deemed ’oppressive’ by the Ombudsman.
In June 2014, a rebuild consent letter from Yarra Ranges Council was issued to Robyn which stated that she could rebuild a ‘carport, shed and studio (outbuilding)’ exempt from the usual planning process, but did not outline what class of building was allowed. Robyn believed the word ‘studio’ meant a ’class 1a habitable building’ while it may also mean a ’class 10a non-habitable building’ to someone in the building industry.
Previously Robyn had a habitable outbuilding which was lost in the fires and reasonably believed she would be allowed to rebuild that.
Robyn said the habitable studio was vital for her and her son.
“The hospital installed the dialysis machine in the studio allowing my son to manage his dialysis sessions so that he can work full time and live his life with autonomy. It also allowed me to be around in a supportive capacity and gave me the comfort of making sure my son was fed and safe whilst on the machine,” she said.
Mitchell Shire chief executive officer Brett Luxford said the Mitchell Shire Council understood the concerns and frustrations of the landowner and empathised with the stress the situation has caused her and her family.
“In August 2014, our Municipal Building Surveyor, acting within legal guidelines, issued the building permit as per the application received from the builder,” he said.
“We recognise, however, the building owner may not have been adequately informed about this permit and our written communication wasn’t as clear as it could have been.“
“We sincerely apologise to the landowner for the confusion and extra stress this has caused.“
What made Robyn more disappointed was the uncertainty of the solution and the dragged process.
“I am very disappointed that despite months of investigation, negotiation and my active cooperation providing them with all compliance documents, Planning Consents, septic approvals etc, the issue is not fully resolved,” Robyn said.
“This has been made very difficult, in my view, partly because of changing and sometimes conflicting demands by councils and their continued failure to acknowledge mistakes such as Mitchell Shire having the wrong name and address on the Building Permit,“
“However, I am hugely relieved that Yarra Ranges have removed the Building Order and have no further issues with my building.”
The Ombudsman’s report noted the Municipal Building Surveyor at Mitchell Shire Council has ’ongoing legal and professional responsibilities’ in regard to the building permit, while the Municipal Building Surveyor at Yarra Ranges Shire is unable to be the Relevant Building Surveyor due to the building order. If Robyn wishes to receive a Final Certificate for the building, it must be issued by Mitchell Shire Council’s Municipal Building Surveyor. Only with the consent of the council can this be done, and Mitchell Shire Council previously told Robyn that it no longer provides consent for permits for buildings outside of its municipal boundaries after a policy change in 2015.
“(Mitchell Shire) Council has met with the owner of the building, and we’re focused on finding a constructive solution and committed to supporting the landowner in understanding her options moving forward,” Mr Luxford said.
In August 2022, there was an unsuccessful attempt to reach a conclusion between the councils through conciliation because neither party could agree on the key facts of the case and who shouldered the burden of responsibility, prompting the Ombudsman to proceed with the investigation.
A Yarra Ranges Council spokesperson said on top of the difficulties and complexities of rebuilding after an emergency and the complexity of the separate planning and building permit process with modified structures, the Council has to ensure that life health and safety considerations are paramount to ensure the risk to residents living in converted structures is resolved.
“In this case, once the building was upgraded to ensure the minimum safety requirements were met, particularly giving regard to the fact that it is located in a bushfire-prone area, Yarra Ranges withdrew the building order, to enable Mitchell Shire Council to proceed to resolve the issue of the building permit which had expired,” they said.
“Yarra Ranges Council is pleased to see that, in response to the Ombudsman Victoria report, Mitchell Shire has offered to work with the owner to finalise the matters.”
Robyn said she would like to see better processes in local governments for ratepayers to count on with communications.
“Dealing with the Office of the Ombudsman has been a very positive experience. They have hit the nail on the head about the underlying and salient issues. I can’t speak highly enough of the professionalism and considered humanity of everyone I dealt with at the Office of the Ombudsman,” Robyn said.
“Though the issues are not fully resolved, the Ombudsman has moved it all to a place where I can get on with my life.”
Victorian Ombudsman Deborah Glass, who tabled the Investigation into a Building Permit complaint in Parliament, said that while Robyn’s circumstances may be unique, aspects of her story could happen to any of us.
“We all make mistakes, but when they are compounded by officialdom, we should expect agencies to help us find solutions. Our vulnerabilities should be acknowledged and reflected in how we are treated. Behind every complaint is a human story needing to be heard,” Ms Glass said.
“At times, both councils struggled to recognise the human story behind the complaints or that a vulnerable person who had lost so much might not be familiar with the building act and regulations.
“Although both councils have tried to work with Robyn to find a solution, they need to communicate clearly and consistently, to use their discretion, to find flexible solutions and to give reasons for their decisions. They need to treat dissatisfaction as a complaint and respond appropriately, rather than adopting a defensive position.”
The Victorian Building Authority was also contacted for comment.