Benalla Rural CC v PCN Middendorp [2009] VCAT 1003

1. This application is listed for hearing for one day on 11 August 2009 commencing at 10am. The Tribunal must include a member who is a legal practitioner.
2. By no later than 18 June 2009 the responsible authority must serve on the respondent and file with the Tribunal any further or amended grounds on which the applicant intends to rely at the hearing, including details of the following:
   1. Whether the plan of survey submitted by the respondent is contested and, if so, on what basis;
   2. Whether the amended re-vegetation management plan submitted by the respondent is opposed and, if so, points of deficiency must be outlined; and
   3. How the original figures in Order 2 of the Tribunal's enforcement order dated 19 August 2009 were derived.
3. By no later than 14 July 2009, the respondent must file with the Tribunal and serve on all other parties a copy of each document and statement of the evidence or report of each witness, whether that witness be an expert or a lay witness, on which it intends to rely at the hearing not yet filed and served.
4. By no later than 28 July 2009, the responsible authority must file with the Tribunal and serve on the respondent a copy of each document and statement of the evidence or report of each witness, whether that witness be an expert or a lay witness, on which it intends to rely at the hearing not yet filed and served.
5. Costs are reserved.

Mr Jim McKenna of Counsel, instructed by Harrison Dobson & Cottrill

Mr Stephen Jones of Counsel, instructed by Robert Richter & Associates

1. Deputy President Gibson issued an enforcement order by consent in respect of the subject land on 19 August 2008, providing for the revegetation of the subject land. Order 2 of the enforcement order required the revegetation management plan to be prepared to provide offset requirements for 4.5ha of the property, with a net outcome of 2.43 habitat hectares to be achieved.
2. The Tribunal's order provided liberty to apply. In addition, Deputy President Gibson commented in her remarks that:

If there are difficulties achieving the necessary revegetation on the subject land, then an application may be made to amend the enforcement order under section 121 (sic.) of the Planning and Environment Act 1987.

1. The respondent now applies to the Tribunal to amend the enforcement order pertaining to the revegetation management plan. It proposes a reduction in the extent of the land to be revegetated, to 3 hectares, with a net outcome of 1.62 habitat hectares. The respondent's legal representatives have submitted an amended plan to the Tribunal and responsible authority reflecting these reduced figures.
2. In support of this amendment, the respondent obtained a site survey that suggests that the area from which native vegetation was originally removed without a permit was less extensive than identified by measurements taken (or estimates made) at the time of the consent order.
3. Mr Jones submitted that this constituted an innocent mistake of fact, and that injustice would result if the enforcement order was not amended. The respondent proposes to call evidence from an environmental consultant and surveyor at a hearing to be convened in this application.
4. The responsible authority refused to consent to the amendment on the basis that it contested the re-opening of the enforcement order in principle, having regard to relevant case law tests. It also submitted that the revegetation area was proposed to be reduced due to allowances for access tracks and the like, being matters that were already factored in to the figures contained in the enforcement order made by consent.
5. The parties alluded to the fact that there may still be a dispute between them as to the methodology of calculating how the enforcement order could be complied with. In this respect, I remind the parties of the opportunity to make an application under 149(1)(c) of the Planning and Environment Act 1987 if there is a stalemate as to whether the responsible authority is satisfied with the proposed revegetation plan. To date, no such application has been made, presumably because the respondent now wants to change the extent of revegetation required of him.
6. It appears from the request received from the respondent's legal representatives that this application is being made pursuant to the "liberty to apply" order of Deputy President Gibson dated 19 August 2008. Although the order and reasons do not document the reason for making this order, it appears that the liberty to apply provision was intended as a consequence of the Deputy President making alterations to the wording of the consent order.
7. I note that earlier decisions of the Tribunal and the Courts have held that the term "liberty to apply" is constrained in its scope. Specifically, it has been held to be a device by which further orders may be made where necessary for the purpose of implementing and giving effect to the principal relief already granted. That is, it is essentially directed to "questions of machinery" in respect of the order. It does not detract from the initial orders as being final orders.[1]
8. Accordingly, I do not consider that there is sufficient scope in the "liberty to apply" order to encompass the request now made by the respondent to review the extent of the land required to be revegetated. This is a fundamental aspect of the enforcement order, underpinning the extent and objectives of the revegetation management plan. It is not simply a consequential matter or one that can be regarded as affecting only the mechanics of the order.[2]
9. However, in order to enable this application to be determined efficiently and with minimal technicality, I am able to consider the application as one made under section 121 of the Planning and Environment Act 1987. This enables any party to apply to the Tribunal to amend an enforcement order. The section does not provide any express limitations on this power, neither does it provide decision guidelines as to when such an amendment may be appropriate.
10. In this respect, the decision of Kraan v Cardinia Shire Council[3] is of assistance, where Deputy President Gibson referred to Senior Member Byard's decision in King v Shire of Gisborne:

An applicant for the exercise of the power to cancel or amend under Section 121 would normally need to be able to point to something material that has arisen or come to light since the making of the order. It is not enough that the applicant omitted by oversight to advance some evidence or argument at the original hearing if the Applicant could or should have advanced it then.

1. I do not consider that there is any need for the Tribunal to grant leave to bring an application under section 121 of the Planning and Environment Act 1987. While the Tribunal approach I have reproduced above may well be relevant to the Tribunal's discretion whether an amendment to this enforcement order should be granted on the merits, I do not accept that Kraan's case would of itself 'shut out' the respondent from proceeding to a hearing on the merits of the request. Accordingly, I propose to list the matter for a one day hearing.
2. In this context, however, I note the important fact that the enforcement order was made by consent of the parties. In general, the Tribunal regards the integrity of such orders as very important in the administration of justice. The fact that the respondent now wishes to depart from this earlier consent position, irrespective of the basis for such departure, will itself be a practical hurdle for the respondent to overcome if it is to convince the Tribunal that the order should, in effect, be reopened. Beyond this, the planning merits of the application will bear on whether a lesser amount of revegetation is now justified.
3. I am conscious to provide sufficient time from now until the hearing proper for the responsible authority to liaise with and obtain the views of DSE, as it did prior to the consent order being made. However, I note that DSE was not a party to the application for enforcement order. I believe that this informal referral can be facilitated within the schedule of dates provided for in my order.

[1] These principles are derived from cases such as _Nicholson v Nichols_on [1974] 2 NSWLR 59 and Abigroup Ltd v Abignano [1992] FCA 567; (1992) 39 FCR 74.

[2] I distinguish this from the facts in Re Richardson and Business Licensing Authority (2005) VAR 456, a decision of His Honour Judge Bowman. In the circumstances of the case before him, Judge Bowman considered that he was not functus officio and could entertain an application to vary a date by which his order had to be complied with under the "liberty to apply" provision contained in his order. This hinged on his finding that the date by which the order had to be complied with was a "consequential order".

[3] [2006] VCAT 1629.