DC Consolidated Investments Pty Ltd & Ors vs Maroondah CC (Correction) [2012] VCAT 999

Pursuant to Section 119 of the Victorian Civil and Administrative Tribunal Act 1998, the order and reasons given in our written determination dated 19 July 2012 are corrected as follows:

1. In order 8 appearing on page 3 of 30, the expression "$7,000" is replaced with the expression "$7,500"
2. In paragraph 123 of the reasons on page 27 of 30, in the quotation of section 119(b)(iv) of the Planning and Environment Act 1987, the words "to specify things" is corrected to read "to do specified things".
3. In paragraph 140 of the reasons on page 30 of 30, the expression $7,000 is replaced with the expression "$7,500".
4. In paragraph 141 of the reasons on page 30 of 30, the expression "not" is replaced with the expression "now" so that the paragraph will commence with the words "We are now in a position...".

Application under s. 79 of the Planning and Environment Act 1987 (PE Act) for review of the failure of the responsible authority to grant a permit within the prescribed time.

Application under s. 114 PE Act for an enforcement order.

Use of land as restricted retail premises, warehouses, buildings and works, business identification signs, dispensation of standard requirements for car parking and bicycle parking, dispensation in relation to loading bay requirements, access alteration to Road Zones Category 1 and removal of native vegetation.

Clearing of native vegetation without planning permission required under the Maroondah Planning Scheme.

Design and Development Overlay - Schedule 5 (DDO5).

1. The enforcement order application[1] was heard jointly with an application for review DC Consolidated Investments Pty Ltd v Maroondah City Council[2]. The main controversy in the hearing was in relation to the planning review proceeding rather than the enforcement order application.
2. After reserving our decision we gave a written determination dated 19 July 2012 and we made an enforcement order on the same date.
3. It was announced, early in the hearing, that agreement had been reached between the parties in relation to the enforcement order. It was agreed between them that an enforcement order should be made in the terms sought in the enforcement application filed by the responsible authority. Thereafter no attention was paid to the terms of the enforcement order in the course of the hearing.
4. Our determination of the planning review was that no planning permit should be granted.
5. In relation to the enforcement order application, we made an enforcement order in the terms of our document dated 19 July 2012.
6. In doing so, as explained at some length in our reasons attached to the joint determination in relation to both cases, we encountered some difficulties. The matter of the enforcement order application was discussed at paragraphs [16] and paragraphs [119] to [141] of our reasons attached to our determination. The form of orders sought by the responsible authority in its enforcement application were long and complex. Furthermore, for the reasons given in our reasons for determination, we considered that the orders there sought exceeded the powers of the Tribunal to make an enforcement order.
7. We proceeded to make an enforcement order in much simpler terms which we considered to be satisfactory and within power.
8. However, we were conscious that the terms in which we made the order did not follow the terms agreed to between the parties. We therefore thought it appropriate to give the parties an opportunity to be heard or to make submissions in relation to the form of orders. That was not meant to imply that the need for such hearing or submissions was thought necessary. We noted that if, as a result of further representations, we considered it appropriate to vary the enforcement order, there is power under section 121 of the Planning and Environment Act 1987 (PE Act) for us to vary the order. We can do that on our own initiative, quite apart from any application made to us for such a modification.
9. The directions we gave authorised the parties to make further written submissions and to indicate therein if they considered a further hearing to be necessary or desirable.
10. We subsequently received a written submission in the form of a facsimile letter dated 31 July 2012 from the solicitors acting on behalf of the responsible authority.
11. A response, in the form of a much shorter letter dated 24 August 2012, has been received by the solicitors acting on behalf of the respondents.
12. The submissions for the responsible authority are lengthy and complex ones seeking complex orders on bases that seek to get around the problems that we encountered and carefully explained in our original reasons. Amongst other things they have sought to utilise section 93 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) to avoid the difficulties and limitations that we discerned in the power to make enforcement orders given to the Tribunal in the section 119 of the PE Act. However, they seek amendment to the enforcement orders made to incorporate reference to the orders they seek under section 93.
13. The solicitors for the respondents have declined to join issue on these matters simply saying, in the last paragraph of their letter:

Otherwise, the Respondents make no submissions as to the extent, if at all, section 93 of the Victorian Civil and Administrative Tribunal Act 1998 authorise the making of Orders in an Application for Enforcement Order under section 119 of the Planning and Environment Act 1987 or as to the form of alternative Orders now sought on behalf of the Responsible Authority.

1. Notwithstanding the ingenuity of the solicitors for the responsible authority in seeking to use section 93 and other ways to justify the elaborate orders they seek, we think they really run into the same or similar problems to those that we have found they are unable to do under section 119. In particular, we still see problems in making an enforcement order now to comply with something that does not yet exist but which the solicitors seek to have created in the future under orders to be made under section 93. That appears to us to still be a matter of delegating the decision as to what is required to the responsible authority. As explained in our original reasons, we think that deferring things to the responsible authority is only authorised where there is statutory justification, for example where the statute actually authorises an order that something be done to the satisfaction of the responsible authority, or only with its approval or consent.
2. We consider that the enforcement order we made is valid and sufficient. If this proves not to be the case, there is always the possibility of amendment pursuant to section 121 PE Act. We are not minded, in these circumstances, to alter the enforcement order that we made on 19 July 2012.
3. The representatives of the parties are unanimous that we made a slip in the order for costs that we made at order 8 of our determination and reasons dated 19 July 2012. The agreement between the parties was that they would consent to an order in favour of the responsible authority in the sum of $7,500 for costs in relation to the enforcement application and not, as it appears in our order at present, $7,000.
4. That order appears only in our determination and reasons, and not in the separate enforcement order document. It is a slip that can be corrected pursuant to section 119 of the VCAT Act.
5. We have noted another slip in the nature of a typographical error in paragraph 123 of our reasons in our document of 19 July 2012. In that paragraph we purport to quote the terms of subparagraph (iv) of section 119(B) PE Act. What appears reads as follows:

"(iv) to specify things within a specified period-"

"(iv) to do specified things within a specified period-"

1. This slip is quite apparent in that we quoted the phrase correctly in the following paragraph 124.

Rosa De Felice and Camillo De Felice and D.C Consolidated Investments Pty Ltd

Russell Byard, Senior Member and Mary-Anne Taranto, Member

DC Consolidated Investments Pty Ltd v Maroondah CC [2012] VCAT 999

Native vegetation was cleared from land at 2/640 Dorset Road Bayswater North, the road reserve adjacent thereto, 8-183 Canterbury Road, Bayswater North and the Canterbury Road land has been developed in contravention of Planning Permit M/2004/1087 and its associated vegetation offset management plan and in contravention of paragraph 3.7 of an agreement AG 315791K made pursuant to section 173 of the PE Act.

1. Within 6 months of the date this order the Respondents must, to the satisfaction of the Responsible Authority, revegetate those areas of land from which vegetation was removed as depicted in the map being attachment K to the Enforcement Order Application using indigenous plantings of local provenance, such revegetation were to be carried out and completed before the end of the following Autumn or Spring (whichever is the sooner) so that such work is not to occur in summer.
2. The Respondents must, within the said period of 6 months, fence off the revegetation area from stock and motorised vehicles and thereafter maintain that conservation area (using it only for activities which are consistent with the preservation of flora and fauna habitat) to the satisfaction of the Responsible Authority.
3. By consent, the respondent company DC Consolidated Investments Pty Ltd is ordered to pay to the Responsible Authority $7,000 for costs in relation to this Enforcement Application.
4. The applicant must serve a copy of this order on the owner of the land and any other person against whom the order is made pursuant to section 140 of the Victorian Civil and Administrative Tribunal Act 1988.

Section 79 Planning and Environment Act 1987 (against failure to grant a permit in the prescribed time); Section 114 Planning and Environment Act 1987 (enforcement order); Maroondah Planning Scheme; Industrial 1 Zone; DPO1, VPO1, DDO5, Restricted retail (bulky goods) and warehouse development; Removal of native vegetation; Net gain and offsets; Loss of existing offsets; Whether proposal generally in accordance with development plan; Built form; Advertising Signs, Carparking; Internal road network; Loading and unloading arrangements; Pedestrian access; Landscaping.

D.C. Consolidated Investments Pty Ltd, Rosa De Felice and Camillo De Felice

DC Consolidated Investments Pty Ltd v Maroondah CC [2012] VCAT 999

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Act 1998, the permit application is amended to substitute for the permit application plans the following plans filed with the Tribunal:

TP 00, 02, 03, 03a, 03b, 04, 05, 08, A1, A2, A3, A4, C1, C2, C3, C5, D1, D2, D3, D4, D5 and D6.

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Act 1998, the permit application and application for review is amended by altering the description of the land so that it includes the road reserve adjacent to the frontage of 640 Dorset Road, Bayswater North.
2. The application to review the failure of the responsible authority to grant a permit within the prescribed time is refused and no permit is granted.
3. Nature of Contravention: Native vegetation was cleared from land at 2/640 Dorset Road Bayswater North, the road reserve adjacent thereto, 8-183 Canterbury Road, Bayswater North and the Canterbury Road land has been developed in contravention of Planning Permit M/2004/1087 and its associated vegetation offset management plan and in contravention of paragraph 3.7 of an agreement AG 315791K made pursuant to section 173 of the PE Act.
4. Within 6 months of the date this order the Respondents must, to the satisfaction of the Responsible Authority, revegetate those areas of land from which vegetation was removed as depicted in the map being attachment K to the Enforcement Order Application using indigenous plantings of local provenance, such revegetation were to be carried out and completed before the end of the following Autumn or Spring (whichever is the sooner) so that such work is not to occur in summer.
5. The Respondents must, within the said period of 6 months, fence off the revegetation area from stock and motorised vehicles and thereafter maintain that conservation area (using it only for activities that are consistent with the preservation of flora and fauna) to the satisfaction of the responsible authority.
6. If either party wishes to be further heard or to make a written submission in relation to the form of the two foregoing orders, it must advise the Registrar in writing within 14 days of the date of this order that it wishes to be so heard or to make such a written submission setting out the form in which (having regard to our reasons) it considers that the orders should be changed and, if a written submission is being made, then a copy of that written submission on the basis that copies of the advice and any such written submission will be provided to the representatives of the other party within the said period of 14 days in which event that party may reply in writing within a further period of 14 days (copies to be provided to the opposing party) who has 7 days to make a written reply after which we will determine whether a further hearing should be appointed or whether we will determine further outstanding questions on the papers.
7. By consent, the respondent company DC Consolidated Investments Pty Ltd is ordered to pay to the Responsible Authority $7,000 for costs in relation to this Enforcement Application.

He presented written and oral submissions and called Dr Graeme Lorimer, environmental scientist of Biosphere Pty Ltd, as an expert witness. Dr Lorimer gave oral evidence and adopted a written report plus a written addendum.

For D.C. Consolidated Investments Pty Ltd, Rosa De Felice and Camillo De Felice

Mr Ian Pitt, senior counsel of Best Hooper, solicitors.

He presented written and oral submissions and called four expert witnesses:

• Mr John Kiriakidis, traffic engineer of GTA consultants.
• Mr Brett Lane, terrestrial ecology consultant of BL&A.
• Mr Peter Doyle, town planner of SJB Planning Pty Ltd.
• Mr Robert Thomson, landscape architect of Habitat consultants.

Application under s. 79 of the Planning and Environment Act 1987 (PE Act) for review of the failure of the responsible authority to grant a permit within the prescribed time.

Application under s. 114 PE Act for an enforcement order.

Use of land as restricted retail premises, warehouses, buildings and works, business identification signs, dispensation of standard requirements for carparking and bicycle parking, dispensation in relation to loading bay requirements, access alteration to Road Zones Category 1 and removal of native vegetation.

Clearing of native vegetation without planning permission required under the Maroondah Planning Scheme.

Design and Development Overlay - Schedule 5 (DDO5).

• Clause 33.01-1 - Use for restricted retail premises (IN1Z).
• Clause 33.01-4 - Buildings and works (IN1Z).
• Clause 43.02-2 - Buildings and works (DDO5).
• Clause 42.02-2 - Removal of native vegetation (VPO1).
• Clause 52.17-2 - Removal of native vegetation.
• Clause 33.01 and Clause 52.05-8 - Display of illuminated business identification signs.
• Clause 52.06 - Reduction of standard carparking requirements for restricted retail premises.
• Clause 52.34-1 - Reduction of standard requirements for bicycle parking.
• Clause 52.29 - Create and alter access to Road Zone Category 1 (Dorset Road and Canterbury Road).

• Clauses 10, 11, 12, 12.01, 15, 16, 18, 21.02, 21.03, 21.04, 21.07, 21.09, 21.10, 21.11, 22.05, 22.09, 22.11 and 65.

The substantive portion of the site comprises an irregular parcel of land on the south-west corner of the intersection of Canterbury Road with Dorset Road. It has a frontage of 288.36 metres to the south side of Canterbury Road, an abutment of 703.23 metres to the west side of Dorset Road and with an area of 19.1 hectares.

A Melbourne Water pipetrack traverses the front portion of the site between Canterbury Road and the western boundary.

The road reserve along the Canterbury Road frontage includes an area of remnant native vegetation. A bus-stop and shelter are located at the eastern side of this frontage which is accessible by a footpath from the east but not the west. A service road has been constructed along part of the Dorset Road abuttal.

Lot 2 on Lodged Plan 143949 being the land in Certificate of Title Volume 9536 Folio 002.

Quentline Pty Ltd v Maroondah City Council [2008] VCAT 1415.

Villawood Properties Pty Ltd v Greater Bendigo CC (Red Dot) [2005] VCAT 2703.

Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259; (1979) 44 LGRA 393.

Canet v Brimbank CC [2003] VCAT 13; (2003) 13 VPR 58.

We undertook an accompanied inspection of the site on the morning of 21 June 2012. In addition to the parties' representatives, Dr Lorimer and Mr Lane were also present at our request.

Near the beginning of the hearing Mr Pitt, on behalf of DC Consolidated Investments Pty Ltd, sought leave to amend the application to substitute some, but not all of the plans forming part of the permit application.

The substituted plans are dated 26 March 2012 and are identified in the Order made above. This amendment was granted by consent.

Plans also relied upon that were submitted with the permit application but which were not amended from their original form are:

• TP01, 06, B2, C4, E3 and E4 dated 11 August 2010;
• TPE1, E2, E5 dated 20 October 2010;
• TP B1, B3, C6, F1 dated 27 May 2011.

1. D.C. Consolidated Investments Pty Ltd (the company) seeks permission for the development of a substantial area (19.1 hectares) of land located on the south-west corner of Canterbury Road with Dorset Road, in an Industrial 1 Zone. The land is in two parts, split by a Melbourne Water pipe track in a Public Use Zone 1. The land is also affected by multiple overlay controls, namely a Vegetation Protection Overlay (VPO), Development Plan Overlay (DPO) and Design and Development Overlay (DDO).
2. Some warehouse buildings have already been constructed on the southern part of this land with access via Clipsal Drive which runs west from its "intersection" with Dorset Road some distance south of the Canterbury Road intersection.
3. The main proceeding before us seeks planning permission to construct some further warehouse/factory premises (with floor areas totalling 31,213sq.m) in the middle of the land together with some restricted retail premises (29,300sq.m) at the northern end intended to take advantage of the frontage to Canterbury Road in the nature of a 'homemaker' centre. This development, together with road works that are proposed for access to the site, particularly along the Canterbury Road frontage, would result in the loss of significant native vegetation. The impact on native vegetation is the central issue in this case.
4. This proceeding is a review under s. 79 of the Planning and Environment Act 1987 (PE Act) of the failure of the responsible authority to grant a permit within the prescribed time. Although a decision was not made within that time, the responsible authority has made it clear that it would refuse the required permissions.
5. It was necessary, at the commencement of the proceedings, to ascertain the grounds upon which the responsible authority opposes the grant of the permissions sought. This was necessary because a lengthy statement of grounds presented in a letter failed to convey the basis on which the proposal is opposed by the responsible authority.
6. Furthermore, a twenty-nine (29) page officer's report did nothing, or almost nothing, to clarify the situation, as it contained no analysis or assessment of the proposal or the issues and likewise, failed to make it clear why the proposal is opposed by the responsible authority.
7. The responsible authority does not oppose the development and use of the land generally as proposed. However, the land is subject to a development plan under the Development Plan Overlay. There has been an amendment to some parts of the originally approved plan under that Overlay. There was some controversy before us as to the nature and extent of the approved development plan in its current state.
8. This is significant because pursuant to the Development Plan Overlay, permission cannot be granted for a development that is not generally in accordance with the approved development plan. The degree of accord may vary according to circumstances, but to make that assessment it is relevant to understand, not only the proposed development, but also the nature and extent of the plan with which it is supposed to generally accord.
9. There is an issue in this case, raised by the responsible authority, in relation to internal circulation of vehicles within the site. In particular, it is concerned that large trucks, including semi-trailers, will be able to, and perhaps to an extent, will be required to, pass through the parking area for customer and staff parking associated with the restricted retail premises at the northern end of the land. It takes the view that this layout is undesirable and should not be approved in its present form.
10. The company responds by saying that the layout is in accordance with the approved development plan. In so saying, it refers to a plan that has not been approved by the responsible authority.
11. There are a number of buildings proposed in relation to both the restricted retail usage and warehouse development in the middle of the site. These buildings, or most of them, are to be provided with loading bays; but it is contended that they are insufficient to accommodate semi-trailers and that trucks, including semi-trailers, will be unloaded in specified areas beside the buildings but in close proximity to carparking spaces for customers and staff.
12. The responsible authority maintains that this is an undesirable arrangement that should not be approved.
13. Mr Wong, in his written submissions on behalf of the responsible authority, summarised the key issues from the point of view of his client in paragraph 139 of his written submissions in the following terms:

The key issues arising in the Application for Review relate to:

• the failure of the proposed development to adequately respond to the premium character of the site's status in strategic policy context;
  • traffic and parking arrangements;
  • native vegetation identification and retention;
  • the lack of proposed landscaping.

1. Apart from traffic and loading arrangements, the responsible authority also maintains that there is insufficient provision for parking.
2. It is further contended that there is some valuable native vegetation on the land, including remnants of swampy woodland and some wetland areas. There are issues as to what part of this remnant vegetation should be retained and what off-set arrangements there should be for its loss.

1. The second proceeding is an application by the responsible authority, for an enforcement order. However, it was announced at the beginning of the hearing that the responsible authority and the respondents are now in agreement in relation to the disposal of that proceeding. The agreement is that the respondents will consent to the making of orders in relation to the enforcement order application in the terms set by the responsible authority. The contravention giving rise to the enforcement order is the clearing of native vegetation that has already taken place. The respondents admit that this contravention occurred without admitting, indeed with a denial, that they committed the contravention. Their involvement is on the basis that the company is the owner of the land in relation to which the contravention occurred and the individual respondents are directors of the company.

1. Schedule 1 to the Development Plan Overlay is known as the "Canterbury Road and Dorset Road Strategic Industrial Area". It applies to the review site and some neighbouring land. Relevant to this site, it provides that the approved Development Plan must include:
   • the proposed road network for the site, including:
     • a traffic management plan identifying the hierarchy of the internal road network,
     • the location and types of access points Canterbury Road and Dorset Road taking into account existing vegetation and the existing road network,
   • indicative lot size and layout;
   • building envelopes for all lots that:
     • abut Canterbury Road or Dorset Road,
     • Contain remnant native vegetation.
   • Vegetation survey and condition statement, landscape buffers and setbacks of 15m Canterbury and Dorset Roads, the retention of remnant native vegetation in buffer areas, and a landscape design and theme for the site (having regard to existing vegetation and the desire to develop high quality industrial areas).
2. A Development Plan was subsequently approved by the Council on 6 March 2002. It comprises a number of documents:
   • Traffic Engineering Assessment (prepared by TTM Consulting Pty Ltd;
   • Conceptual Site Development Plan (drawing No. 529014M1D, Rev. 02);
   • Landscape Guidelines;
   • Concept Landscape Plan;
   • Plan of Feature Survey;
   • Master Panning and Servicing Report prepared by John Chivers and Associates); and
   • Arboricultural Inspection & Report, Terry Bourke.
3. In its originally approved form the development plan broadly envisaged:
   • An industrial development with single tenancies on individual lots, most with an area of 4000sq.m to 5000sq.m. The possibility of bulky goods/peripheral sales along Canterbury Road was also identified.[3]
   • Collector roads including a north-south link from Canterbury Road to an east-west road (the latter now known as Clipsal Drive).
   • Service roads along parts of the Canterbury Road and Dorset Road frontages.
   • A landscaping theme of treed boulevards and landscaped setbacks to the lots.
4. In 2008, planning permission was sought for a different form of development, generally comprising 25 lots for warehouses in five banks on the central portion of the site. That proposal was refused by the Council and was the subject of a declaratory proceeding before Member Cook in Quentline Pty Ltd v Maroondah City Council[4] ("the Quentline case").
5. The declaration sought was whether that proposal would be generally in accordance with the approved development plan. Member Cook found that it would not.
6. Following that decision, the land owner made application to the Council in August 2009 for amendments to the development plan with the aim of facilitating a change in the nature of uses and development now proposed on the land.
7. The Council subsequently approved the "Conceptual Site Development Plan" (Job No. 0903 dated 08.06.2010) on 10 December 2012. In essence, this amended plan shows four large lots, two of which straddle Clipsal Drive and have already been developed. The two lots further north comprise the largest parcel of 64,767sq.m with a Canterbury Road frontage which is to accommodate the restricted retail use, while the central lot of 52,747sq.m is to contain the industrial/warehouses component. The location of the access point to Canterbury Road remains unchanged.
8. There was considerable debate at the hearing as to whether two other plans with amendments should have also been approved by the Council. The Applicant had apparently assumed that it had received approval of all three plans and that the Council erred by only approving one plan.
9. This is disputed by the Council who initially submitted that permission for the approval of one amended plan only was sought. The situation was made more difficult by the absence of any officer report assessing the amendment application and lack of documentation in the Council's records.
10. As it transpired, on 7 June 2012 Council's delegate decided to approve a second plan following further review of its files. That was after we had adjourned the hearing on the 26 April to the 20 June 2012.
11. This second plan titled "Conceptual Site Development Proposed Use Plan" (Job No. 0903 dated 08.06.2010) is identical to the first plan except that it includes the description "Proposed Restricted Retail/Industrial Use" and "Proposed Industrial Use" over those parts of the site now proposed for these purposes.
12. Aside from Clipsal Drive, neither amended plan shows the layout of the internal road network proposed within the boundaries of the review site.
13. This represents a departure from the conceptual layout plan originally approved in 2002 which shows a north-south collector road between the Canterbury Road access point and Clipsal Drive.
14. The third plan prepared by GTA Consultants titled "Proposed development Plan amendments Canterbury Road / Dorset Road Bayswater Traffic Access Considerations" indicatively shows a revised alignment for "proposed loading vehicle circulation/connectivity (internal)" generally along the western part of the site between Canterbury Road and Clipsal Drive and with a small portion along the Dorset Road frontage.
15. The Council maintains that this plan "did not form part of the amendments that Council was asked to consider" but rather was provided for 'ease of reference' and that its approval would need to be the subject of a further request.[5]
16. Ultimately the company waived its argument in relation to the third plan and accepted that we should proceed on the basis that only the first two are approved.
17. While it is not our task to determine whether non-approval of the third plan was an administrative oversight by the Council or indeed whether this plan ever accompanied the 2009 request to amend the development plan we feel compelled to make some observations about this course of events.
18. Firstly, aside from an informal powerpoint presentation at a councillor briefing session (in relation to which we understand no minutes or other record was kept), we must express our concern that an officer report assessing the amendment request does not appear to exist.
19. This is particularly problematic given the substantial lapse of time since the original approval of the development plan in 2002, 10 years ago (or 8 years after the first amendment to it was made), adding a considerable degree of complexity to this case.
20. For instance, it is unclear whether in deciding to amend the development plan the following matters were considered:
    • How current day planning scheme policies, provisions or controls may have changed over time, in this case since 2002, and the implications of those changes. In particular, we note that the statewide amendment VC19 came into effect in July 2003 introducing the Net Gain principle bringing with it considerable change to the way native vegetation in Victoria is assessed, controlled and managed when permission for its removal is sought;
    • The implications of other planning permissions granted since 2002 and any other changed circumstances in respect of the site's physical context or the land itself. This includes the development of neighbouring lots to the west within the Development Plan Overlay (DPO1), the construction of a warehouse on the north side of Clipsal Drive which obstructs the alignment of the north-south collector road originally depicted on the development plan and road widening works including the duplication of Canterbury Road in front of the site;
    • Any consequential impacts of making partial amendments to the development plan upon the remaining parts of the development plan, noting that a substantially different development model is now proposed. The amendment of one plan potentially exposes gaps in or necessitates changes to other parts of the plan. As we have mentioned, of particular relevance is the ambiguity now surrounding the internal road network and landscaping arrangements.
21. Secondly, the lack of any documented assessment also raises the issue of whether amendments to the development plan are being assessed in any integrated or consistent manner or whether such decisions are simply being made on an ad-hoc basis. We think that these are important considerations in preserving the strategic value and intent of the DPO1 as well as ensuring fair and equitable outcomes for all land owners.
22. Perhaps this case highlights the need for responsible authorities to impose time limits on the life of development plans and to apply appropriate criteria such as those matters we have identified in paragraph 36 when assessing requests for amendments to development plans.
23. In any event, we acknowledge that while a permit cannot be granted for something that is not generally in accordance with the development plan, the grant of a permit may be refused for something that is in accordance with the development plan if the circumstances so warrant. This is an important distinction to make.
24. In light of the considerable lapse of time since the approval of the substantive parts of the development plan, we are mindful of the long established principle that the Tribunal is obliged to consider the planning controls in force on the date on which its decision is made[6] together with other relevant planning scheme policies and provisions.
25. It is within this context that we have based our assessment of this proposal.

1. The matrix of policies and controls that apply to this site give rise to a number of conflicting objectives that highlight the complexities of this case and, as required by Clause 10.04 of the planning scheme, the need to balance these in favour of net community benefit and sustainable development for the benefit of present and future generations.
2. On the one hand, there are a number of policies which identify the site as one capable of supporting a "major development opportunity",[7] suited to peripheral sales along the Canterbury Road frontage[8] and otherwise described as the "Bayswater North Strategic Industrial Area".[9]
3. The direction for future land use under these policies is complemented by the Industrial 1 zoning of the land, in which use of the land for 'warehouse' is "as-of-right" and where 'restricted retail' is a use that requires a planning permit. We take no issue with the proposed use of the land for peripheral sales.
4. The Canterbury Road and Dorset Road Strategic Industrial Area Policy at Clause 22.11, a site specific policy that only applies to this land and neighbouring land to the west, recognises in its policy basis:

... the need for the provision of large industrial sites to serve as attractors for major employers, strategic industrial use and leading national and international organisations. The development of this area is expected to occur over a number of year [sic.]. It is therefore important to provide a sound and clear development framework for the realisation of the estate as a premium strategic industrial estate in the outer east of Melbourne.

1. The need to achieve high standards of urban design within an attractive landscape setting are key themes, given particular effect through the Industrial Urban Design and Development Policy at Clause 22.09. This policy applies to the use and development of land in the Industrial 1 zone. The following overlay controls also provide particular guidance on built form and landscape design considerations:
   • Development Plan Overlay (Schedule 1 - Canterbury Road and Dorset Road Strategic Industrial Area), and
   • Design and Development Overlay (Schedule 5 - Canterbury Road and Dorset Road Strategic Industrial Area).
2. On the other hand, the site has intrinsic environmental values which have been identified and which are to be considered when making decisions about land use and development.
3. We note that a planning permit is required for the removal of native vegetation under the provisions of the Vegetation Protection Overlay - Schedule 1 (Site of Biological Significance) and under Clause 52.17.
4. Key policies at the statewide level include Clause 12 (Environmental and Landscape values) whose purpose recognises that planning should help to protect the health of ecological systems and the biodiversity they support (including ecosystems, habitats, species and genetic diversity) and conserve areas with identified environmental and landscape values.
5. Of particular relevance to this case is Clause 12.01-2 - Native Vegetation Management which is underpinned by the principle of Net Gain - that is, the achievement of a net gain in the extent and quality of native vegetation. This policy has the following strategies:

Apply the three step process as set out by Victoria's Native Vegetation Management - a Framework for Action. These are:

Step 1: As a priority, avoid adverse impacts on native vegetation, particularly through clearance.

If the removal of native vegetation can not be avoided:

Step 2: Minimise impacts through appropriate consideration in the planning process and expert input to project design or management; and

1. In implementing this policy, we are required to consider Victoria's Native Vegetation Management - A Framework for Action[10] which is an incorporated document in all Victorian Planning Schemes.
2. Under the local planning policy framework, the maintenance of biological diversity and an increased presence of indigenous flora and fauna continue these statewide themes. The Sites of Biological Significance Policy at Clause 22.05 is particularly relevant and includes a useful guidance for the information that should accompany an application for the removal of native vegetation. One of two policy references is the Sites of Biological Significance in Maroondah[11] (1996) co-authored by Dr Lorimer who gave expert environmental evidence in this case on behalf of the responsible authority. This document is also referenced under VPO1 and includes the review site.

1. It was common ground that the site contains vegetation belonging to the Swampy Woodland and Wetland (EVC 937). This is an endangered Ecological Vegetation Class (EVC) in the Gippsland Plain bioregion.
2. The most significant elements comprise vegetation across the Canterbury Road frontage both within the site and on the road reserve; and wetlands between the Melbourne Water pipe-track and Canterbury Road. Both Dr Lorimer and Mr Lane (ecology consultant who gave expert evidence for the company) agree that this vegetation is of 'very high' conservation significance.
3. A smaller area of remnant indigenous vegetation is located close to the Dorset Road frontage whose conservation significance is 'high'.
4. It was Dr Lorimer's evidence that an endangered EVC is a site of State Conservation Significance.[12]
5. Dr Lorimer documented five wetlands, the largest of which is described as 'Wetland 1' in his statement of evidence. This comprises an area of 0.184ha and which he considers to be the most biologically significant, sustaining at least thirty indigenous plant species, several of which are identified as regionally significant.
6. Dr Lorimer also said that additional wetlands are likely to occur south of the pipe-track and these should preferably be the subject of further assessment. We understand that this area is likely to have been subject to more substantial levels of ground disturbance, and thus any wetland patches would have a lower level of significance.
7. Vegetation along Canterbury Road includes a large population of Veined Spear Grass[13] listed as a rare species throughout Victoria,[14] together with numerous native trees including eucalyptus species. These include a "Large Tree" (whose removal for access purposes is not disputed), one "Very Large Old Tree" and a "Medium Old Tree" west of the bus stop.
8. We accept that habitat on the site supports a wide variety of native fauna including frogs (whose calls were clearly audible on the morning of our inspection), various bird species (such as White-faced Herons) and reptiles. We also accept Dr Lorimer's evidence that the Glossy Grass Skink is likely to be found on this property, given its discovery 2 ½ years ago on the adjoining property 100m to the west and due to the continuity of suitable habitat between the two sites. We note that this species is close to extinction in the Port Phillip and Westernport Region and is listed as 'Near Threatened' in the Department of Sustainability and Environment's Advisory List of Threatened Vertebrate Fauna in Victoria (DSE 2007).

1. The proposal would result in the total loss of wetland areas on the site.
2. Along the Dorset Road frontage, 7 small scattered trees of low conservation significance are to be removed. One medium scattered tree, described as Tree 15 in Mr Lane's report is proposed for removal. The parties agree however that with some design modifications, this tree could be retained, an outcome that we would support.
3. Less certain is the development's impacts upon remnant native vegetation along Canterbury Road, both within the review site and on the road reserve.
4. Although plans of the proposal show the retention of the Very Large Old Tree and a Medium Old Tree, their retention together with other vegetation along Canterbury Road is in dispute.

1. Taking into account the identified strategic significance of the site for use as a premium industrial estate, we accept that there will be substantial losses of the site's environmental values. We are still however required to balance development and use objectives against planning scheme policies and controls that require application of the three-step process under the Native Vegetation Framework.
2. In relation to the land south of the pipe-track which may support wetlands, we would not require further assessment of this area given the extent of disturbance. It follows that no off-sets would be required for this element.
3. However, in relation to the wetlands between Canterbury Road and the pipe-track, we prefer Dr Lorimer's evidence that more than half of their area is unmodified and that the unmodified portion triggers a habitat hectare assessment and the provision of appropriate offsets.[15] We also agree that:
   • the offset should be created at a new site including relocation of the most important flora and fauna species to the new wetland habitat,
   • before any development of the land the presence of the Glossy Grass skink and the Swamp skink should be sought and if found, rescued and relocated to a suitable habitat nearby.[16]
4. On the basis of the evidence given, we are satisfied that although regrettable, the complete loss of wetlands from the site is capable of support given the ability to recreate a suitable wetland habitat elsewhere.
5. We are not persuaded however that removal of the most significant and contentious area of vegetation along Dorset Road is capable of support at the present time.
6. We have not been provided with sufficient evidence to satisfy us that there has been a genuine attempt to firstly 'avoid' vegetation loss and then to 'minimise' any losses as required by the three-step process underpinning the Native Vegetation Framework.[17]
7. We are also troubled by the lack of consideration given to the proposal's impacts upon vegetation offsets that already exist along the road reserve following permission[18] granted by the Council to Vic Roads in 2005 for native vegetation removal associated with the duplication of Canterbury Road. These offsets include Veined Spear Grass.
8. The impact upon these offsets was, it seems, unknown to the parties including Mr Freeman representing Vic Roads and Mr Lane, until Mr Wong produced the relevant planning permit and plans on the second day of the hearing - the tabling of which was opposed by Mr Pitt (appearing for the company).
9. We also note that the loss of these offsets triggers a requirement for referral of a permit application to DSE[19] whose attention it seems was not drawn to this situation. DSE's position on the impact upon these existing offsets is therefore unknown at this time.
10. In saying this we acknowledge that notice of the permit application (based on an earlier version of plans) was given to DSE in March 2011 who did not object to the removal of vegetation subject to conditions. This conditional support also envisages the clearance of 0.016 hectares of Very High conservation significance vegetation - an amount that we think is an underestimate.
11. We therefore find that, at the present time, there is insufficient information for us to make a properly informed judgement about the full impact of this development proposal, particularly upon vegetation along the Canterbury Road frontage (both within the site boundaries and in the road reserve). In particular, we note that:
    • The dimensions of the deceleration lane sought by VicRoads only came to light during the course of the hearing. We understand the lane is to have a length of 70m comprising a straight section that is 3.5m wide and a 25m wide taper for the balance.
    • The design plans do not provide an appropriate level of detail showing the location of existing vegetation (including the understorey) relative to the required dimensions and alignment of the deceleration lane and associated works including a guard rail, buffer areas clear of vegetation behind the guard rail that are necessary to satisfy road safety requirements and the alignment and type of underground services. Thus, both environmental experts were only able to provide rough estimates of possible impacts at the hearing.
    • The three large internally illuminated pylon signs (33sq.m in area) with a height of 6m and width ranging from 4.8m at the base to 5.49m at the top are to be constructed within areas containing remnant vegetation. Advertising panels commence close to ground level and we note that under the DDO5, there is a mandatory height limit of 6m for freestanding signs. Their location relative to existing vegetation including Veined Spear Grass, the practical reality that these signs will need to be visually exposed (that is, not obscured by surrounding vegetation) and works associated with the installation of these large structures (such as excavation for footings) is too uncertain.
    • The location and dimensions of footpaths are not shown.
    • The design of Building B would on its northern face lean into vegetation along Canterbury Road proposed for retention.
12. While the last two of these matters could be remedied through the imposition of suitable permit conditions, the lack of certainty surrounding the full impact of this proposal on native vegetation has considerable implications in properly applying the Native Vegetation Framework.
13. We are unable to conclude with any certainty:
    • What the full quantum of vegetation losses are.
    • Whether the extent of impact on native vegetation can be supported having regard to the quality and quantity of affected vegetation.
    • What offsets are required.
    • Whether the required offsets can in fact be provided, noting that we concur with both environmental experts that offsets should not be provided on the site but elsewhere.[20]
14. We think it is not appropriate to defer these matters to a secondary consent process given the degree of uncertainty they present.
15. We are left with the impression that the location of the access point to Canterbury Road has been approached as a fait accompli primarily driven by the development plan. In the circumstances, we do not consider that this is the appropriate approach.
16. This situation illustrates the sort of problem that arises when an old approved development plan is not kept up to date. In this case, the approved plan pre-dates important amendments to the planning scheme that we are obliged to apply. For example, the three step approach in relation to vegetation removal has come in, though the approved development plan takes no account of it in relation to access to Canterbury Road or otherwise. The plan has become obsolete in relation to the removal of native vegetation, especially in relation to the location of the access. We cannot give blind deference to the development plan or ignore the three step assessment in relation to native vegetation.
17. As we have said, any planning permission required still needs to achieve an acceptable outcome in the context of relevant planning scheme considerations including the Net Gain principle. We acknowledge that the achievement of an acceptable outcome may necessitate further amendments to the development plan.
18. If the site is to be developed to the extent proposed, we agree that for this site to function appropriately from a traffic perspective, vehicle access of some kind at Canterbury Road is probably necessary.
19. We also acknowledge that the issues surrounding the access arrangements are complex, include a consideration of road safety, the location of the bus stop and involve a number of stakeholders, including VicRoads, DSE and Melbourne Water. We think however that there needs to be a more co-ordinated and creative approach to the access design with a fuller examination of options. For example, a left-turn out only arrangement (rather than entry and exit) at Canterbury Road or alternatively, use of the access on the neighbouring site to the west could be options.
20. The starting point should involve better identification of the location of existing vegetation (trees and understorey), the location of existing offsets within the road reserve and an agreed understanding about the relative significance of these. To this end, we note that the information that should accompany permit applications for native vegetation removal described at Clause 22.05-3 is worth revisiting. The outcome of that process can then be drawn upon to generate design options and to inform the other matters we have raised such as the location of signs.
21. In light of these findings, we are unable to support the grant of a permit.

1. In broad terms we are generally satisfied with the landscape concept for the site although we would caution against relying on new landscaping within the site to satisfy any required offsets arising from the loss of native vegetation. We adopt what the Tribunal said in Villawood that:

[77] ... The obligation to provide appropriate offsets that are secure and ongoing should rest with the permit holder/developer".

1. We do not think those obligations should be left to future land owners particularly in an urban and industrial context.
2. To the extent that we are able to apply the very general landscape guidance forming part of the approved development plan, we find that the proposal before us follows the recommended indigenous planting theme, would establish a clearly identifiable landscape character within the site and generally achieves a treed 'boulevard' effect along the main access roads. We also note that 15m wide landscape buffers to both road frontages are proposed as required under the DPO1.
3. We agree that the provision of landscaping should relate to the functionality of the area being landscaped. To this end, we think the landscaping proposed around the warehouse buildings is acceptable.
4. Were we minded to grant a permit we would have required a fully detailed landscape plan as a permit condition showing, for example the number and location of individual tree and plant species.
5. We also think there is scope for an improved landscape response comprising additional feature trees in the following locations:
   • Within the western banks of carparking spaces on the east side of Building A,
   • Along the west side of Building A,
   • Along the east side of Building B, and
   • Along the north side of Building C.

1. As we have decided that a permit should not be granted, we do not need to deal with the issue of whether the internal road network is generally in accordance with the development plan.
2. It is however clearly in the interests of all parties that a resolution be reached in relation to the internal road network in the context of the development plan. This is necessary to overcome the ambiguity that presently exists and in light of the requirement under Schedule 1 of the DPO to provide details of the road network for the site including:
   • A traffic management plan identifying the hierarchy of the internal road network.
   • The location and types of access points to Canterbury Road and Dorset Road taking into account existing vegetation and the existing road network.
   • The provision of internal road frontage to the areas of public open space.
3. Relevantly, the internal road layout will to some extent (and we think should) be informed by the outcome of that further analysis we consider is necessary in relation to native vegetation along Canterbury Road.
4. Notwithstanding, were we in a position to grant a permit we note that the following principles summarised in Canet v Brimbank CC[21] would apply:
   • General accordance is a question of fact to be judged on the facts and circumstances of each case, and
   • the less detail and precision there is in the primary document or documents, the more flexibility is given by the phrase "generally in accordance with".
5. We also note that:
   • Collector roads were previously shown which we, like Mr Kiriakidis would expect to be in public ownership. The current management arrangement is not altogether clear but internal roads do not appear to reflect design standards normally associated with a public road.
   • The criticisms expressed by Mr Wong on behalf of the Council in relation to the internal road layout were based on:
     • potential conflicts between trucks and cars, particularly within the main carpark central to the restricted retailing area and for loading and unloading.
     • the ability to achieve sufficient landscaping along previously envisaged road reserves rather than their tenure.
6. It is appropriate that we make findings in relation to the merits of these submissions. We will turn firstly to the issue of potential conflicts between trucks and cars and will return to the issue of landscaping shortly.

1. As a general principle, we consider that the internal road network should be designed to separate, as far as practical, use by trucks and cars, particularly in areas of high activity. While we think the circulation arrangements proposed in respect of the warehouse component are generally acceptable, the restricted retailing element is less well resolved.
2. We note that the internal road layout was not designed by Mr Kiriakidis (the traffic engineer who gave evidence on behalf of the company) but rather presented to him by the project architect. Under cross-examination by the Tribunal he explained that traffic and access arrangements external to the site have been the primary focus of his involvement and that although in his opinion the internal road network presents an acceptable outcome, it would benefit from some further refinement.
3. We would not oppose the use of the east-west road between Buildings A and C (east of Building B) by trucks and cars, given that no car spaces are directly accessed from this portion of the road. We consider however that the following movements by trucks would be problematic, noting that car spaces are directly accessed from these parts of the internal road network:
   • The sharp left-turn in movement from Canterbury Road between Building B and the pipe-track;
   • The right-turn movement around the north-east corner of Building A.
4. We accept that on the basis of the swept path diagrams presented by Mr Kiriakidis, these movements can be physically achieved by semi-trailers.[22] The required manoeuvres are however tight, with little room for error involving both sides of the accessway. Moreover, these turns would occur in areas where we would expect high levels of customer parking to occur. While we acknowledge that truck movements will not necessarily co-incide with peak visitation by customers, we are not persuaded that the arrangement is an acceptable one, particularly given the reduction in parking sought. We think these arrangements run counter to one of the decision guidelines at Clause 52.06-9 which requires us to consider:

The ease and safety with which vehicles access and circulate within the parking area

To ensure that the design and location of car parking is of a high standard, creates a safe environment for users and enables easy and efficient use.

1. A further area of concern is the design of the egress point to Canterbury Road. Although it is not intended to accommodate left-turn movements by exiting trucks we think it highly probable that this movement will still be attempted by these vehicles. It would offer a quicker, more direct route for westbound trucks rather than negotiating access onto Dorset Road. This movement would however involve trucks either crossing up to three lanes in Canterbury Road or mounting the kerb. We do not think that either of these scenarios is acceptable. Mr Kiriakidis suggested that signs within the site could be installed advising that trucks must not exit onto Canterbury Road and that tenants could play a role in reinforcing this message. We have reservations about the effectiveness and enforceability of this approach in the circumstances.
2. We understand that the access point would need to be widened to properly accommodate left-turns by exiting trucks with a consequential loss of additional vegetation. The full impact of this arrangement upon native vegetation is however not known and in light of the desirability of avoid vegetation losses, further widening is unlikely to be appropriate.
3. In any event, on the basis of the design before us, we are unable to conclude that this is acceptable.

1. We find that the locations and design of loading bays is, in a number of cases is not well resolved. We have particular concerns with the loading/unloading arrangements in the following locations:
   • east side of Building A;
   • west side of Building B;
   • west side of Building C;
   • south side of Building F.
2. In the case of Buildings A, C and F, trucks may well need to undertake reversing movements or other turning manoeuvres within accessways and the use of forklifts around trucks is likely. Car spaces are also proposed in the vicinity of these loading areas. We think this is a poor design, one that may give rise to vehicle and pedestrian conflicts and which may impinge on the efficient operation and safety of the internal road network.
3. On a related issue, the service function of these loading areas also raises questions about their high levels of exposure to what we regard as more public areas of the site. Such areas can have the potential to be visually unattractive. We would want to see proper waste storage areas constructed so as to conceal from public view bins, stockpiled materials for recycling and the like.
4. In relation to Building B, no car parking spaces are shown near the loading area, but we note that four internal loading bays are proposed and these would require trucks to reverse over a distance of up to 80m. We think this is a poor design response. Mr Kiriakidis suggested modifications to this area, by locating the loading bay entries further south. In-principle, we would support an arrangement along these lines but the acceptability of this would need to be assessed following further detailed design.

1. Further detailed refinement of the pedestrian access arrangements throughout the site and to Canterbury Road, which includes a bus stop, is necessary. In particular, we note that pedestrian paths should at least be provided in the following locations:
   • between the three access points to Dorset Road between Clipsal Drive and Canterbury Road;
   • along the east side of Buildings A and C; and
   • on the south side of the 15m wide landscape buffer along Canterbury Road.
2. We note that the provision of these paths is likely to have consequential impacts upon various elements of the proposal, such as the footprint and siting of some buildings.

1. We are satisfied that with appropriate conditions sought by Vic Roads, this proposal would not result in any adverse traffic impacts upon the surrounding road network.
2. It was common ground that the number of car parking spaces proposed for the warehouse use (468 spaces), at a rate of 1.5 car spaces per 100sq.m of floor area, would be acceptable. We agree.
3. In relation to the restricted retail use, 720 car spaces would be available which equates to a rate of 2.46 spaces per 100sq.m of floor area. It is the Council's submission that 3 spaces per 100sq.m should be provided, representing the standard rate under Clause 52.06 of the planning scheme.[23]
4. In support of the lower rate proposed, Mr Kiriakidis envisages the potential for shared use of at least some of the car spaces associated with the warehouse use, noting that car parking peaks for each use typically do not coincide. He also drew on empirical rates of other like developments and relied upon the limited on-street parking availability that would act as a disincentive for overflow parking away from the site.
5. On the basis of this evidence, we would accept this lower parking rate for the restricted retail use provided that suitable management arrangements were implemented (such as designating warehouse spaces conveniently located to the restricted retail component within common property) to guarantee their shared availability.

1. With the exception of Building F and our findings in relation to the loading areas, we find that the design of the buildings themselves is generally acceptable.
2. We think the siting of Building F within the core of the site represents a poor planning outcome and would not advance the high quality urban design outcome envisaged by planning scheme policies and controls for this site. This building, whose large blank southern wall spanning 40m with no architectural relief other than the corrugations in the colorbond cladding proposed, would be visually imposing. It would not contribute to a co-ordinated and attractive streetscape as envisaged by the objectives under DDO5.
3. Its location seems like an afterthought and lacks integration with the remaining parts of the development.

1. In paragraph 16 above we made some mentions of the second proceeding that is before us namely the enforcement order application made by the Responsible Authority in relation to the clearing of native vegetation. Having been told, very early in the hearing, that the parties were in agreement in relation to the enforcement application, the matter did not receive further attention in the course of the hearing. It was our understanding that the agreement was that an enforcement order should be made in the terms set out in the application for an enforcement order that was lodged by the Responsible Authority.
2. Attachment M to the enforcement order application is headed "Proposed Orders". That attachment runs to two and a half pages of detailed text containing 12 draft orders, some of which contain numerous subparagraphs. It amounts to a very elaborate scheme for restoration of the areas where the clearing of native vegetation occurred.
3. The first five paragraphs appear to be recitals of the contravention giving rise to the enforcement order Application. Section 119 of the Planning and Environment Act 1987 (PE Act) is the section that empowers the Tribunal to make enforcement orders. It is, in fact, section 119(b) that sets out the powers of the Tribunal in relation to the making of enforcement orders. Section 119(a)(i) provides that an enforcement order must specify the use or development that contravenes or has contravened or will contravene planning laws. It is such contravention that provides a basis for making an enforcement order. Thus we have, in the first five paragraphs, an elaborate account of the alleged contraventions that are admitted by the respondents to the enforcement application. Though, as previous explained, they do no admit that they themselves committed the contraventions; they admit that the company is the owner of the land and the others are directors of the company and are liable to the enforcement order on that account.
4. The Tribunal's powers under section 119(b) are wide, but not unlimited. The Tribunal does not have powers to make an enforcement order going beyond what is authorised by that subsection.
5. Section 119(b)(i), (ii) and (iii) provide that an enforcement order may direct any person against whom it is made to stop a contravening use or development within a specified period, not to start such a use or development or maintain a building in accordance with the order. It is really the more complex provisions of section 119(b)(iv) that are relevant in the present situation. That paragraph provides that an enforcement order may direct a person -

(A) to restore the land as nearly as practicable to its condition immediately before the use or development started or to any condition specified in the order or to any other condition to the satisfaction of the Responsible Authority...or other person or body specified in the Order; or

(B) to otherwise ensure compliance with this Act or the planning scheme, permit condition or agreement under the section 173.

1. Subparagraph (B) sounds very wide in its terms where it speaks of "otherwise ensure compliance" but the powers of the Tribunal in that respect are limited by the words at the beginning of paragraph (iv) namely "to do specified things within a specified period".
2. In other words, if the Tribunal is to utilise its powers under paragraph (iv) it (and not somebody else) must specify the things to be done, and also specify the period in which they are to be done. The Tribunal is not limited to requiring restoration, as near as practicable to the condition immediately before the contravention. It may require restoration to some other condition specified in the order or to a condition to the satisfaction of the Responsible Authority. It can delegate to the Responsible Authority the degree of restoration or remedial work that it will be satisfied with, but that is the only power of delegation afforded by these provisions. So far as subparagraph (B) is concerned, that gives the Tribunal scope as to the compliance to be achieved, but only in relation to things to be done that it has specified within a period that it has specified.
3. The effective order being sought by the Responsible Authority is in paragraph 6 of its proposed orders. That paragraph reads:
   1. Within 6 months of the date of these orders, the Respondents must revegetate those areas of land which vegetation was removed (as depicted on the attached map), using indigenous plantings of local provenance. The revegetation works required by this order are to be carried out and completed before the end of the following Autumn or Spring (whichever is sooner) and must not occur in Summer.
4. The plan referred to is attachment K to the enforcement order application. It is an aerial photograph depicting several "patches" denoted as A, B1-B5, C, D and E where vegetation was destroyed or cleared.
5. We think we could make an order in those terms although "revegetate" might be seen as a relative expression so that the addition of the phrase "to the satisfaction of the Responsible Authority" would seem to us to be appropriate.
6. Paragraph 9 of the proposed orders also contains some requirements that could be included in an enforcement order. It reads
   1. The Respondents must permanently:
      • 9.1 fence off the revegetated area from stock and motorised vehicles; and
      • 9.2 maintain it as a conservation area (using it only for activities which are consistent with the preservation of flora and fauna habitat);

1. Perhaps the time in which the fencing is to take place should be specified, but otherwise this appears to be in order.
2. We are troubled by the other proposed orders. Order 7 says that it is for the purpose of complying with order 6. It requires the creation of a Revegetation Plan that does not presently exist which is to accord with "the Native Vegetation - Regeneration Planting Standards (DSE 2010) to be consistent with the "Ecological Vegetation Class (EVC) benchmark for Swampy Woodland (EVC # 937)".
3. This revegetation plan is to be designed by an experienced ecological consultant who is to be to the satisfaction of the Responsible Authority. The plan is ultimately to be to the satisfaction of the Responsible Authority. As can be seen already, draft order 7 contains some jargon and acronyms that a lay reader might not understand.
4. Draft order 8 requires the submission to the Responsible Authority of a report by a qualified ecological consultant certifying that the works (presumably those required by draft order 6) have be carried out in accordance with the specifications in these orders (presumably the specifications in the revegetation plan required by draft order 7). This report must identify any works remaining outstanding and provide for ongoing maintenance of the vegetation through a monitoring program which requires further reporting at 2, 5 and 10 year intervals. We think that such report might contain a program, although it would not, itself, provide the ongoing maintenance.
5. No revegetation plan exists at present. That is to be created in the future. Insofar as it may contain specified things to be done within the specified time, neither specification can be included by the Tribunal in an order made at this time.
6. We do not say that such an elaborate set of directions or requirements is not a good idea. It is just that we do not see that we can order it now pursuant to section 119.
7. We suppose that it would be possible to give a direction or invite an undertaking that a revegetation plan should be created and, when it is in existence, if we were satisfied with it, we could then specify requirements within it to be carried out within specified periods. We are not keen to get involved in such supervision. This is a case where the Respondents acquiesce in the arrangements set out in the various proposed orders. In these circumstances where the Respondents agree, it seems to us more appropriate that these detailed arrangements that they agree to should take the form of a written undertaking to the Tribunal or an agreement pursuant to section 173 PEA Act or, perhaps, that there be a direction that the administrative steps be undertaken on the basis that the Responsible Authority will take account of the regeneration plan and report in determining what it will be satisfied with in relation to an order in terms of draft orders 6 and 9.
8. Draft order 10 calls for the respondent company to enter a section 173 agreement with the Responsible Authority "to provide for the permanent protection, maintenance and replacement of any dead vegetation and any vegetation planted pursuant to these orders". The requirements of draft orders 7 and 8 might be included in such an agreement if it is thought desirable to have an official record and enforceable arrangement, although perhaps not all of that needs to be registered on the title to the land (that being a further requirement of draft order 10).
9. All in all, we think that these matters for the purposes of complying with an order in the form of draft order 6, and checking up on and maintaining such arrangements should be in the form of a written undertaking and or a section 173 agreement and we should be content with the phrase "to the satisfaction of the Responsible Authority".
10. A similar situation arises in relation to draft order 11. It calls for a yet to be created Offset Management Plan and Schedule of Works. This draft order actually calls for the preparation of such a plan, but does not provide for its implementation or carrying out. If that is merely to be implied, it constitutes rather loose drafting compared with all the detail of the two and half pages of proposed orders.
11. Proposed order 12 does not present difficulties. It seeks an order as to costs. The Responsible Authority and the Respondent company have reached agreement that there should be an order by consent that the company pay to the Responsible Authority $7,000 costs in relation to the enforcement application proceedings.
12. We are not in a position where we have the consent of the parties to one form of orders where we are not satisfied, for the reasons given above that we should make orders in these terms. We think that we should make orders as we think fit and give the parties an opportunity to be further heard in relation to the form of orders if they are dissatisfied with what we have done. It may never be necessary, but there is a power under section 121 PE Act to amend an enforcement order where that is necessary or desirable.

1. The issues in this case involve a complex interplay of planning scheme considerations and site features. These include the site's environmental values and its strategic significance for a large industrial development.
2. The shortcomings that we have identified are not, in our view, easily resolvable without a comprehensive re-examination of this proposal.
3. Whilst we acknowledge that a substantial amount of time and resources have already been spent in an endeavour to bring about an acceptable planning outcome, we conclude that this has not yet been achieved. There are simply too many loose ends. Apart from other concerns, we are not satisfied that the first step of 'avoid' in the three-step process which underpins the principle of Net gain in relation to native vegetation has ever been properly carried out.
4. For the reasons we have set out, we agree with the responsible authority that no permit should be granted.

[1] Maroondah CC v. DC Consolidated Investments Pty Ltd P569/2012

[2] [2012] VCAT 999

[3] See Appendix D of Master Planning and Servicing Report by John Chivers and Associates comprising a statement by Tim Nott of Essential Economics dated 12 April 2000

[4] [2008] VCAT 1415.

[5] Letter dated 8 June 2012 from Maroondah City Council (Anthony Diaferia) to SJB Planning (Kel Twite) which accompanied the amended plan approved on 7 June 2012.

[6] See Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259; (1979) 44 LGRA 393.

[7] See Maroondah Land Use Framework Plan at Clause 21.03 of the Planning Scheme.

[8] See Maroondah Land Use Framework Plan at Clauses 21.03 and 21.09 of the Planning Scheme.

[9] See Maroondah Land Use Framework Plan at Clause 21.10 of the Planning Scheme.

[10] Department of Natural Resources and Environment, 2002

[11] Volumes 1 and 2. By G S Lorimer, J C Reid, L P Smith and H Moss.

[12] Applying the criteria described in DSE's "Standard Criteria for Sites of Biological Significance in Victoria' (December 2004) compiled by Nevil Amos.

[13] Austrostipa rudis subspecies australis.

[14] "Advisory List of Rare or Threatened Plants in Victoria" (DSE 2005).

[15] See Native Vegetation - Technical Information Sheet - Defining protected, retained or loss scattered trees - Assessment of modified wetlands - Clarifying like-for-like requirements of the Framework. DSE 2011.

[16] The Bungalook Creek reservation 700m to the north and the 'horse pond' reserve to the south-west were suggested by Dr Lorimer as suitable candidate sites for release.

[17] See also Clause 12.01-2 of all Victorian Planning Schemes.

[18] Planning Permit M/2004/880 issued on 11 April 2005.

[19] Under Clause 66.02 of the Maroondah Planning Scheme because a property vegetation plan applies to the site. A property vegetation plan is defined at Clause 72 of the Planning Scheme which we take to include the provision of offsets.

[20] See for example Villawood Properties Pty Ltd v Greater Bendigo CC (Red Dot) [2005] VCAT 2703 for a discussion of relevant principles.

[21] [2003] VCAT 13; (2003) 13 VPR 58.

[22] That is, a 19m long articulated vehicle.

[23] As amended by VC90 and VC94 on 5 June 2012 and 4 July 2012 respectively.