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[2001] VCAT 274
appellant. Application for Review allowed in part; Responsible Authority must issue a permit for demolition works and erection of minor works (Garden Rockery) with condition that the 1.8 metre high chain mesh...
VCAT allowed M. & E. Field's review in part and ordered the council to issue a permit for demolition and minor works (a garden rockery). The Tribunal attached a condition requiring the removal of a 1.8 metre chain mesh fence within 5 metres of the Myrniong Grove frontage within three months. The Tribunal corrected an earlier statement to acknowledge that the council preferred reinstatement of a low heritage-style fence but accepted that the Tribunal could not order reinstatement by appeal and that enforcement proceedings would be required for that remedy. Because there was no application for a new low fence before the Tribunal, it could not direct construction of one, but it could require removal of the offending structure and allow the garden rockery.
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1,636 words · generated 14/09/2026
This is a short VCAT Planning List decision by Member P.G. O'Leary concerning 2 Neave Street, Hawthorn East. An Application for Review was heard, and the Tribunal published an order allowing the review in part. The operative order required the Responsible Authority (Boroondarra City Council) to issue a permit for demolition works and the erection of minor works (a garden rockery), with a specific permit condition: the 1.8 metre high chain mesh fence within 5 metres of the Myrniong Grove frontage must be removed within three months of the date of the permit (Order).
No linked legislation citations have been extracted yet.
After the Tribunal published its reasons and order (the published reasons are dated 1 February 2001), the Tribunal received a letter dated 30 January 2001 from the Council (Manager Statutory Planning, Mr Stewart Draffin). That letter arrived at the Tribunal on 2 February 2001, one day after publication. The Council's letter reiterated Council's position that a low, heritage-appropriate fence should be reinstated, but explicitly acknowledged that the Tribunal cannot direct reinstatement via the appeal mechanism and that reinstatement, if to be compelled, would require enforcement proceedings (Reason [3]). The Tribunal published the present correction to clarify and correct an earlier statement in paragraph 14 of its original order that had referred to Council not taking action. The Tribunal acknowledged the Council's stated preference for a low heritage fence but explained why it could not direct reinstatement in the absence of an application and because reinstatement would require enforcement rather than being achievable by way of the review (Reasons [3]–[4]). The Tribunal also recorded the Applicant Mr Field's stated intention to remove the fence and plant a hedge, and it observed that the existing small rockery edging ‘‘does not appear to detract from the appearance of the heritage overlay’’ and is appropriate to allow (Reason [4]).
In short: the Tribunal corrected its earlier statement to acknowledge the Council's position and confirmed its order requiring removal of the offending fence as a condition of the permit it directed be issued.
The decision rests on three practical and legal points contained in the Tribunal's reasons.
Limits on remedy-making via review: The Tribunal relied on the Council's own concession that the Tribunal cannot compel reinstatement of a fence through the appeal or review mechanism and that such relief could only be sought through enforcement proceedings (Reason [3]). The Tribunal treated that concession as decisive on the question of whether it could direct reinstatement of a low fence: it could not.
Absence of an application for a new fence: The Tribunal emphasised that no application had been made for construction of a low fence. That absence meant there was no application before the Tribunal that could support an order requiring positive construction of such a fence. The Tribunal said expressly: "However, there is no application for a low fence and therefore it is difficult for the Tribunal to direct that such fence be constructed." (Reason [4]).
Appropriate remedial condition available: The Tribunal accepted the Applicants' position that the offending 1.8 metre fence could be removed and noted Mr Field's intention to replace it with landscaping (a hedge). Given the circumstances and the appearance of the existing rockery, the Tribunal concluded it was appropriate to allow the minor works and to impose as a permit condition the removal of the 1.8 metre chain mesh fence within the specified 5 metre setback (Reason [4]; Order).
Finally, because the Council's clarifying letter arrived too late to be included in the original reasons but did reach the Tribunal promptly thereafter, the Tribunal used its correction to acknowledge the Responsible Authority's position and to correct any earlier implication that the Responsible Authority had not wanted to act (Reasons [1]–[5]).
This decision is not a landmark exposition of planning doctrine. Rather, it articulates and applies two practical constraints the Tribunal views as important when framing orders:
A tribunal reviewing a planning decision should not attempt to compel affirmative reinstatement works (for example, constructing a new fence) by using the review mechanism when enforcement is the proper statutory route for compelling compliance or reinstatement. That principle is stated by the Tribunal in the letter-quote it reproduces: the Council itself "recognise[s] that the Tribunal cannot direct reinstatement of the fence via the appeal mechanism and that such actions can only be directed via enforcement proceedings" (Reason [3]).
If an applicant seeks an outcome that requires affirmative construction (a new fence), the Tribunal will expect an application supporting that construction to be before it; absent such an application the Tribunal will be reluctant to order construction.
After this decision, the practical guidance to practitioners is that enforcement proceedings remain the appropriate instrument for compelling reinstatement or corrective works where the responsible authority seeks compulsion, while the Tribunal's review powers are better deployed to refuse or grant permits and to impose conditions that remove offending structures or provide mitigations when those outcomes are within the scope of the review or application before the Tribunal.
Quoted Council letter: "Council does however recognise that the Tribunal cannot direct reinstatement of the fence via the appeal mechanism and that such actions can only be directed via enforcement proceedings." (Reason [3]). Plain English: Council accepts that VCAT has limited power under a review to force someone to rebuild a fence; if Council wants someone forced to rebuild it, Council must bring enforcement action.
Tribunal on lack of application: "However, there is no application for a low fence and therefore it is difficult for the Tribunal to direct that such fence be constructed." (Reason [4]). Plain English: Because nobody formally applied to build a low heritage fence in the Tribunal proceedings, the Tribunal cannot order someone to build one.
Tribunal on remedial balance: "...the front area is landscaped now with a small rockery edging which does not appear to detract from the appearance of the heritage overlay, the Tribunal considers it appropriate to allow such feature and direct the removal of the 1.8 metre high structure within the 5 metre nominated setback area." (Reason [4]). Plain English: The Tribunal thinks the small rockery is acceptable in the heritage area, so it will let that stay but make the tall, intrusive fence be removed from the heritage setback.
This decision is directly applicable in fact patterns where:
In such circumstances, this decision signals that the Tribunal will be likely to:
This decision is a short, fact-specific VCAT correction; it does not cite higher court authority nor does it lay down a broad novel legal principle. The Tribunal's statements about limits of review powers and the role of enforcement are practical observations consistent with general administrative practice. There is no indication within this decision of binding precedent or of subsequent judicial treatment. For practitioners, it is best read as persuasive, pragmatic guidance about how VCAT in this instance approached remedial discretion and procedural timing rather than as a binding pronouncement altering the law of remedies in planning matters.
Scope of 'enforcement proceedings' vs. tribunal remedies: The Tribunal accepts that reinstatement must be pursued by enforcement. The decision does not analyse the statutory basis for that proposition in detail. There remain questions about the precise boundary between remedies the Tribunal may order in a review and those requiring separate enforcement action under the planning scheme and local government Act/regs. Those statutory questions are not addressed here.
When will the Tribunal exercise power to require affirmative works? This decision declines to require affirmative construction in absence of an application; it does not, however, explore whether there are circumstances where the Tribunal could or should require positive works as a permit condition where the statutory scheme and evidence support that step.
Procedural timing and corrections: The Tribunal corrected its earlier reasons after receiving correspondence that arrived shortly after publication. The decision does not set out a formal rule for when corrections will be published, or whether late-arriving material may ever change substantive outcomes rather than only prompting a correction. That procedural boundary is left open.
Treatment of heritage aesthetics vs planning controls: The Tribunal made evaluative statements about the rockery's visual impact relative to the heritage overlay. The decision contains limited elaboration about the standard the Tribunal applied to make that evaluation, and does not engage detailed heritage planning criteria. Future cases may require fuller reasoning when aesthetic assessment is contested.
Conclusion reminder: This analysis explains what is in the Tribunal's published correction and how the Tribunal reasoned. It is information only and not legal advice. Before acting on, relying on, or using any of this content or any draft derived from it, you should get a qualified Australian lawyer to check it. I can make mistakes and the Tribunal's full context may require a lawyer's review.
RESPONSIBLE AUTHORITY: Boroondarra City Council
2. The Responsible Authority must issue a permit for demolition works and erection of minor works (Garden Rockery).
1. The 1.8 metre high chain mesh fence which is within 5 metres of the Myrniong Grove frontage must be removed within 3 months of the date of the permit.
Mrs J. Higgins, Town Planner represented the Responsible Authority.
1. On 1 February 2001 the Tribunal published its order and reasons regarding an Application for Review at 2 Neave Street, Hawthorn East.
2. As paragraph 14 of the order reference was made to the Responsible Authority not taking any action on the matter.
3. Mr Stewart Draffin, Manager Statutory Planning, Boroondarra City Council wrote to the Tribunal on 30 January 2001. However, the letter was received by the Tribunal member on 2 February 2001, that is one day after the decision was published. In that letter Mr Draffin reiterated the Responsible Authority's position. The letter states:
"Council has not wavered from the view that a fence of an appropriate heritage design and location should be reinstated. I refer to page 10 of the Council's submission:
"Council is of the view that the Applicant should reinstate a low fence in the approximate location of the original. In so doing, the Applicant should have regard to any comments offered by Council's Heritage Adviser as well as the Hawthorn Heritage Guidelines as they affect fencing. At the very least, a low front fence and/or landscaping to Myrniong Grove in place of the existing intrusive fence is considered a must."
Council does however recognise that the Tribunal cannot direct reinstatement of the fence via the appeal mechanism and that such actions can only be directed via enforcement proceedings.
Council's position is therefore, that a low fence that has appropriate regard to the heritage implications of the site should be reinstated in the approximate location of the original. If that is not possible then a fence constructed beyond the heritage overlay area or the option of no fence at all considered to be more appropriate treatments than the fence that has been constructed."
4. The Tribunal wishes to acknowledge the Responsible Authority's position and believes it appropriate to correct the statement made in paragraph 14. The Tribunal acknowledges that a low fence sympathetic to the heritage area would be preferred. One of the reasons the matter was adjourned was to give the Applicant an opportunity to examine various options including removal of the 1.8 metre high fence (within the 5 metre setback area from Myrniong Grove). It also acknowedges that the Responsible Authority wishes to have the offending structure removed. However, there is no application for a low fence and therefore it is difficult for the Tribunal to direct that such fence be constructed. The Tribunal has noted Mr Field's advice that he now wishes to remove the fence and put a hedge in the front setback area. The Tribunal therefore considers that the offending structure will be removed and it has placed a condition on permit to that effect. It notes that the last paragraph in the Responsible Authority's letter that if it is not possible to have a fence then no fence should be in that area. Having noted that the front area is landscaped now with a small rockery edging which does not appear to detract from the appearance of the heritage overlay, the Tribunal considers it appropriate to allow such feature and direct the removal of the 1.8 metre high structure within the 5 metre nominated setback area.
5. The further correspondence clarifies the Responsible Authority's position and whilst it does not change the Tribunal's order, the Tribunal believes it appropriate to correct previous statements made.
Field
Boroondarra CC [2001] VCAT 274
Application for Review allowed in part; Responsible Authority must issue a permit for demolition works and erection of minor works (Garden Rockery) with condition that the 1.8 metre high chain mesh fence within 5 metres of the Myrniong Grove frontage be removed within 3 months of the date of the permit (Order).