You have to hand it to Slater and Gordon. For a bunch of so called lefties they are smart capitalists — wasting no time in seizing an opportunity to make some big dollars for themselves and their shareholders and clients. Casey City Council and the developer of the Brooklyn Greens residential development in Cranbourne, in Melbourne’s south east, are potentially latest targets of Slaters aggressive litigation actions.

Slaters are looking at a class action on behalf of the residents of this estate who are being told that the levels of methane gas at a landfill that is 200 metres from the estate are so dangerous their houses might explode.

But is this simply a case of big bad politicians and developers versus the little guy with Slaters picking up the sword to slay the dragon?

Maybe, maybe not. The Victorian Civil and Administrative Tribunal (VCAT) Order of 23 September 2004 that allowed the development appears predicated upon the City of Casey, which had earlier rejected the development application by Peet and Co Land Syndicate, softening its stance when the matter reached VCAT for hearing in May 2004.

VCAT noted in Comments it made about the lengthy Order it issued that “the above order is the result of an agreement reached by the City of Casey and the applicant that a permit should issue with conditions.”

In other words, the dispute at the VCAT hearing in May 2006 between the parties appeared to simply be about the conditions of a development permit, rather than, as had originally been the case when the Casey Council considered the matter, whether a permit should be issued at all.

What persuaded the Council to change its position? It may have received legal advice that indicated it would unlikely to succeed at VCAT, or there may have been discussions between the developer and the Council as a result of which a compromise on the scope and scale of development was reached.

VCAT also noted in its Comments that it had made an interim order, ordering that “the required buffer distance of the subdivision from the landfill should be 200 metres measured from the active tipping and batter areas of the fill and that this buffer zone could be progressively reduced as the tipping areas were completed, capped and gas extraction systems installed.”

The decision to fix the buffer distance at 200 metres is either the result of an agreement between the developer and the Council, or VCAT making the decision after it heard from the parties and their expert witnesses. How the decision was arrived at, will be important in terms of determining any legal action by residents.

The other issue which is materially important in assessing the success or otherwise of any class action, or even individual litigation, is whether or not the Casey Council properly policed the VCAT order. Did it ensure full compliance by the developer?

The residents of Brooklyn Greens residential estate are entitled to be angry today but any litigation is going to be long, complex and on the evidence so far there is no guarantee that they will win.

Peter Fray

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