Greater Geelong CC v Downing [2025] VCAT 325 | Case summary

Greater Geelong CC v Downing [2025] VCAT 325 | Case summary | Zoe

[22]

At the hearing:
- the applicant called evidence from the following persons:
  - Mark Palmer, Senior Environmental Protection Officer, Environment Protection Agency.
  - Gerard McCann, Senior Planning Investigations Officer, Greater Geelong City Council.
  - Richard Murray Francis, ecologist, Abzeco Pty Ltd.
  - Daryl Bryan Batrouney, neighbour.
  - Dr Geoff Taylor, Manager Floodplains at Corangamite Management Authority.
- the first respondent gave evidence as both a lay witness and an expert witness in the field of fluid dynamics. The first respondent also relied on:
  - Witness statement dated 23 Janaury 2023 of Jason Milton Downing.
  - Affidavit of Jason Milton Downing sworn on 15 February 2023.
  - Expert witness statement of Martin Raboul dated 1 September 2023.
  - Statement and Surveyor's Report of Terry Hamilton including plan of survey Ref. No. 231101-5 dated 15 February 2023, licesed surveyor.
- Tony Lawn of Barwon Stump Grinding gave evidence to the Tribunal on 10 April 2024 in response to a summons issued at the request of the applicant.
After the lunch break on the first day of the hearing, the applicant's representative informed the Tribunal that the parties had been in discussion regarding what were the issues in dispute between the parties. This discussion arose because of some errors in the compilation of the affidavit of Mr McCann in the Tribunal Book.[1]
Mr Philip Downing informed the Tribunal that there was nothing controversial about Mr McCann's evidence as regarding the importation of fill by the first respondent or the impact of that fill on the vegetation covered by the fill. Mr Downing identified three disputed factual issues between the parties as:
- the quantum of fill imported;
- the circumstances surrounding the cutting of a Moonah tree; and
- the circumstances surrounding the cutting of a Cypress tree.
The parties agreed that fill has been placed between the old fence line (which corresponds with the planning scheme boundary between land included in the Neighbourhood Residential Zone and land included in the Public Conservation Resource Zone) and the highwater mark. Mr Downing submitted that while there is a question on how the law operates in respect to this area of land, the first respondent does not dispute that fill has in fact been placed in that area and that the action of placing fill in that area has covered and destroyed riparian vegetation.
I will address the issue of how the planning scheme applies to all the land affected by the alleged contraventions of the planning before considering the key facts in dispute.

[24]

After considering all the material before the Tribunal, I have concluded that I am unable to make a determination on the exact location of the eastern boundary of the Dowing land. I also agree with the second respondent, that given the nature of the proceeding, it is undesirable for me to make any such determination in the circumstances of this matter.
The identification of the location of the eastern boundary of the Downing land arose on the first day of the original hearing dates in 2023 because the enforcement application had been amended to include 'part of the Barwon River' as land on which the alleged contraventions under the planning scheme were conducted. As the first respondent is not the registered owner or the public land manager of land that forms part of the Barwon River, the question arose as to whether the interests of the relevant public land manager would be affected by the proceeding.
The second respondent was identified as the public land manager responsible for the administration of that part of the Barwon River adjacent to the Downing land. The second respondent was joined as a party to this proceeding because the Tribunal was satisfied that its interests would be affected by the proceeding and because the second respondent should have the benefit of any enforcement orders that may be made in the proceeding.
On 5 February 2024, the Tribunal refused the second respondent's application to be removed as a party from the proceeding but ordered that the second respondent was excused from further active participation in the proceeding until consideration of the terms of the enforcement orders sought by the applicant or otherwise called upon to assist the Tribunal. I am satisfied therefore that to the extent that land under the administration of the second respondent may be affected by the works conducted by the first respondent, the second respondent is aware of the issues in the proceeding and has an opportunity to be heard in respect to any relief granted as part of the final determination of the proceeding.
The reasons why I am unable to identify the location of the eastern boundary of the Downing land is simply because of the inadequacy of the material before the Tribunal.
In the absence of the registration of the Hamilton Survey Plan, identified by Mr Hamilton as 'title re-establishment survey', the evidentiary value of that survey plan is no more than a plan that records the location of the mean high tide in February 2023 relative to the Downing land derived by Mr Hamilton through an alternative methodology he obtained from an unlicensed surveyor. Until the Hamilton Survey Plan is registered by the Registrar of Titles, the eastern boundary of the Downing land remains an ambulatory boundary and not a fixed boundary.
Mr Hamilton's affidavit does not provide any reason why he departed from what he identified as the 'recommended methodology' that may or may not have been derived from a document referred to as 'DSE, Department of Sustainability and Environment. 2011. "Principles of Re-establishment Guidance Note 6"'. Further, the details provided by Mr Hamilton regarding the topographic survey, including its timing, are at best, scant and conclusionary.
As Mr Hamilton was not called to give evidence at the preliminary hearing, my queries as to the adoption of the alternative methodology of determining the mean high tide, its appropriateness and suitability, and why Mr Hamilton departed from the 'recommended methodology' remained unanswered. So too do my queries regarding the process by which Mr Hamilton compiled the topographic survey given it was conducted post the placement of the fill material. The decision not to call Mr Hamilton was one made by the first respondent and affects the weight to be given to Mr Hamilton's evidence including the Hamilton Survey Plan. I am unable to accept his evidence because there is simply no explanation provided as to why Mr Hamilton departed from the 'recommended methodology' and adopted an alternative methodology and what, if any, difference would have resulted in the location of the mean high tide had the recommended methodology been adopted.
Finally, the one and half page Licensed Surveyor's Report referred to in Mr Hamilton's affidavit and authored by him does not comply in material aspects with the requirements for PNVCAT2 - Expert Evidence, most notably the report does not contain all facts, matters and assumptions on which that report proceeds and does not contain the required declaration.
I was not persuaded by the first respondent's submissions on the application of s.385 of the Land Act to the facts of this matter.
Section 5 of the Water Act 1905 had retrospective application to all alienated land bounded by any river, creek, stream, watercourse, lake, lagoon, swamp or marsh (because of the use of 'heretofor' in the second paragraph). The effect of s.5 was that the bed and banks of any river, creek, stream, watercourse, lake, lagoon, swamp or marsh 'shall be and remain the property of the Crown.'
Section 385 of the Lands Act also has retrospective application and it has prospective application and therefore applies to titles issued after the commencement of s.327 of the Water Act 1989 (Vic).
I do not accept that the construction or application of section 385 of the Land Act is confined as submitted by the first respondent. The section applies to all alienated land bounded in whole or part by a watercourse, and that land was alienated prior to the commencement of s. 327 of the Water Act 1989.
Section 384 of the Land Act defines 'bed and banks' in relation to a watercourse as follows -

[26]

Further, land permanently reserved to the Crow under the Land Act 1869 (Vic) has a bearing on the location of the bed and banks of the Barwon River. Item 23 of the gazettal notice of 25 February 1881 (that relates to the Barwon River) permanently reserves the bed (item (a)) and the banks (item (b)) in addition to certain unalienated land adjacent to the bed and banks.
Therefore, I am unable to ascertain the location of the bed and banks of the Barwon River that was permanently reserved to the Crown in 1881 because there was no evidence on that issue before the Tribunal. The application of the doctrine of accretion or diluvion requires the establishment of the location of the bed and banks of the Barwon River as at 25 February 1881.
I do not accept that applicant's submission that the notations on the current title are to be interpreted as defining the location of the eastern boundary by reference to the text of the General Law Grant. The notation does not more than caution reliance on the dimensions shown on the title plan as they are stated to have been derived from the General Law Grant. Given that the General Law Grant defined the dimension of the northern and southern boundaries by reference to 17 and 16 chains respectively (being approximately 340 metres - 321 metres) and not the high-water mark, caution may be apt. In any event, the notations are not a directive to adopt the dimensions described in the General Law Grant.
In addition, the applicant has not produced a survey plan or a metes and bounds description of the area over which it is alleged that the fill material has been placed. Although the applicant has produced and relied upon Survey Plan C/26.09.03 produced by the Surveyor-General Victoria to identify the location of the fill material, that plan is based upon Mr Hamilton's topographic survey and as set out above I have reservations about the conclusions to be drawn from the Hamilton Survey Plan. I also note that officers from the Surveyor-General Victoria involved in the preparation of Survey Plan C/26.09.03 have requested that the plan not be used before the Tribunal because the inputs to that plan have not been the subject of formal review and investigation.
The above reasons demonstrate that the material and submissions before the Tribunal raised more questions than were answered in respect of the location of the eastern boundary of the Downing land and the location of the fill alleged to have been placed on land under the administration of the second respondent.
Identification of the location of the eastern boundary of the Downing land is not relevant to, and does not affect that part of the Downing land within the Neighbourhood Residential Zone and that part of the Downing Land or the Barwon River within the Public Conservation Resource Zone. Similarly, identification of the eastern boundary of the Downing land is not required to identify the planning scheme overlays that apply to all alleged affected land. As a result, the alleged contraventions of the planning scheme can be identified as can any exemptions under the planning scheme that may apply to works conducted in those zones or affected by relevant overlays.
The lack of certainty of the exact location of the eastern boundary of the Downing land on the relief sought by the applicant is a matter that the parties can address at the hearing.
Against the background of the above reasons, the Mr Downing submitted at the hearing that no evidence had been adduced by the applicant that the any of the alleged unlawful activity had been undertaken outside the eastern title boundary of the Carr Street land as determined by the Hamilton Survey Plan.
As the reasons set out above clearly show, I rejected Mr Hamilton's evidence for the purposes of my determination of the preliminary hearing. Despite this, the first respondent continued to rely on the Hamilton Survey Plan and the accompanying surveyor's report that I found could not be relied upon because of the shortcomings set out in the above extract of reasons for my determination of 23 March 2023. The first respondent did not call Mr Hamilton to give evidence at the final hearing.
On the fourth day of the hearing following the cross examination of the first respondent, the first respondent gave evidence regarding his dealings with Mr Hamilton following my determination of 23 March 2023.
The first respondent stated that he asked Mr Hamilton what process he would have to go through to ask for the Surveyor General's formal approval of the Hamilton Survey Plan thinking at the time that this would fix the eastern boundary of 16-22 Carr Street which he did not wish to do. The first respondent stated that Mr Hamilton had informed him that Mr Hamilton had made contact with the Surveyor General's office and someone at the Surveyor General's office told Mr Hamilton that normally they would not be involved unless they were asked to make a formal review of the boundary position. Mr Hamilton was also apparently informed that the re-establishment survey that Mr Hamilton had submitted to the Surveyor General's office on 2 March 2023 was subsequently approved by the Surveyor General's office on 29 March 2023 as a valid re-establishment survey and was assigned a cadastral database reference of RE059440.
The first respondent stated that the document reproduced at paragraph 17 of my determination of 23 March 2024 reproduces a plan that refers to RE059440. The first respondent stated that he is not unhappy with the result of the formal approval of the re-establishment survey resulting in RE059440 that is why he has not sought a review from the Surveyor General. It is the first respondent's understanding that the eastern boundary of the Carr Street land remains an ambulatory boundary.
The above statements of the first respondent were contradictory to the response from Mr Downing to my question during an earlier part of the hearing as to whether any steps had been taken by the first respondent to seek a re-establishment of the eastern boundary of 16-22 Carr Street. The response I received was that an application had been made to the Surveyor General, but no response had been received as yet.
The first respondent stated that he did not understand how to interpret the outcome of the process with the Surveyor General and did not understand it's significance which is why this information was not provided to the Tribunal during the preliminary hearing held in November 2023.
The applicant submitted that it did not understand what document the first respondent was referring to.
The document referred to at paragraph 17 of my determination of 23 March 2024 is described at paragraph 17 of that determination. In addition to being a document that was prepared by officers of the Surveyor General's department at the request of the applicant, it was a document which the Surveyor General's office requested not be formally relied upon. Nevertheless, it was produced to the Tribunal for the purpose of the preliminary hearing and relied upon by the applicant to show the position of the boundary of the swamp coincident with the old/previous fence position.
After consideration of the revelations by the first respondent of his recent discussions with Mr Hamilton I have determined to place no weight at all on the content of those discussions because there is nothing in the material before the Tribunal, other than the reference to 'RE059440' in the plan reproduced at paragraph 17 of my determination of 23 March 2024 (which could just as easily be a reference to an application for re-establishment of a boundary) that confirms the statements belatedly made by the first respondent.
Ultimately the first respondent says that the eastern boundary of 16-22 Carr Street remains an ambulatory boundary (an outcome which he is happy with) and that is consistent with my determination of 23 March 2024 and I have proceeded on that basis when making this determination.[2]

[31]

What the map extracted on the Planning Certificate shows is an outline of the boundaries of the Carr Street land that is consistent will all the relevant with information obtained from the property and parcel information contained in an interactive Victorian State Government database found at www.land.vic.gov.au . The property information maps derived from that database shows the 'approximate' dimensions of each property. Users of that database are advised that for more accurate dimensions the user will need a copy of the property's title.[3]
I do not accept that the Planning Certificate is conclusive proof of the title boundaries of the Carr Street land as shown or described in the relevant certificate of title.
What is shown as the eastern boundary of the Carr Street land for the purposes of the Planning Certificate is a boundary that is consistent in its location with the eastern boundary of the Carr Street land shown on all of the relevant planning scheme maps.
Therefore, while the Planning Certificate map does not form part of the Planning Certificate, there can be no doubt that for the purposes of the Planning Certificate the extent of the land for which the certificate was issued is that shown on the map included.
There is also no support from the contents of the Planning Certificate that the eastern title boundary of the Carr Street is that shown in the Hamilton Survey Plan.
As I have found that the eastern boundary of Lot 1 Plan TO819207 is ambulatory, it is not possible for the planning scheme maps applying to land situated at 16-22 Carr Street to reflect the ambulatory eastern boundary of Lot 1 Plan TO819207. In order to provide certainty, a hard planning scheme map boundary is adopted and shown in the relevant planning scheme maps.
What the Planning Certificate shows is that part of the Carr Street land westward of the eastern most solid black boundary line was at the time of issue included in the Neighbourhood Residential Zone - Schedule 6 ('NRZ6') under the planning scheme and was affected by the overlays listed therein. It also shows that all land to the east of the eastern most solid black boundary line is included in the Public Conservation and Resource Zone ('PCRZ').
The Planning Certificate does not alter what the planning scheme maps provide and nor can it.
Section 200(1) of the PE Act confers on a person is the right to use a planning certificate as conclusive proof of its contents as at the date of issue, being 28 February 2023, and it triggers a right to claim compensation where a person relying on its contents suffers financial loss because of a mis-statement contained therein. The first respondent has not demonstrated how the contents of the Planning Certificate issued on 28 February 2023 is of any relevance in this proceeding where all of the alleged contraventions of the planning scheme have occurred prior to 28 February 2023. The impact, if any, of the existence of the Planning Certificate on the exercise of my discretion is considered later in these reasons.
I note that the eastern boundary of the Carr Street land shown on the Planning Certificate map and all relevant planning scheme maps is shown on the Hamilton Survey Plan as the dashed line labelled 'Computed position of planning scheme boundary'. All parties agreed that the dash line labelled 'Computed position of planning scheme boundary':
- is shown in the correct location on the Hamilton Survey Plan; and
- corresponds with the location of an old fence that historically existed on the Carr Street land.

[60]

These photographs show that the southern side boundary fence is constructed of timber posts that have horizontal planks affixed to the posts by nails. The horizontal planks do not abut each other but rather each following horizontal plank is affixed to the alternate side of the posts to the horizontal plank that proceeded it. The method of affixing the horizontal planks to the vertical fence posts can be clearly seen in photograph 3.
The southern side boundary fence varies in height from the Carr Street frontage of the NRZ6 land eastward towards the PRCZ land. The parties agree that the southern side boundary fence has been constructed on land wholly with in the NRZ6 land.
Photograph 2 shows a section of the southern side boundary fence that has a staggered height in the easternmost section of the NRZ6 land.
Darryl Batrouney, the adjoining owner of 10-14 Carr Street, gave the following evidence at the hearing:
- Prior to the erection to southern side boundary fence, there existed a 1-metre-high post and wire fence along the common boundary with the NRZ6 land that extended eastward from Carr Street to about halfway along the common boundary. Together with significant existing vegetation which extended 'twenty to thirty feet' into the NRZ6 land, the post and wire fence delineated the boundary between his property and that of the first respondent.
- The existing vegetation along the common boundary consisted of privet, mirror bushes and three young Cypress trees close to the river.
- He was first approached by the first respondent by email in late February 2022 seeking his permission to remove the existing vegetation along the common boundary and he responded that he was agreeable but that as the vegetation effectively acted as a fence between the two properties, he would need a fence to be built to replace its removal. He was aware that there were pending enforcement proceedings against the first respondent because of the filling work undertaken by the first respondent.
- The first respondent informed him that the reason he wished to remove the vegetation was because he wished to construct a driveway along the common boundary to enable him to launch boats on the river.
- The southern side boundary fence was erected by the first respondent and family members around mid-December 2022.
Mr Batrouney's evidence was that he sought to engage in pre-planning consultations with Steve Roussac from the applicant regarding the need to obtain a permit for a fence along the common boundary with the NRZ6 land, however because of the prospect of pending enforcement proceedings against the first respondent, Mr Roussac's advice was that it may too early for a pre-application meeting to take place.
In an email to the first respondent, Mr Batrouney informed the first respondent of the outcome of those consultations relevantly as follows:[8]

[61]

I was then called last Friday by Steve Roussac, Principal Planner (I will send you separately his email to me of 15.7.22, which contains my application form). His advice to me was-

1. the first 17 metres of our boundary back from the river (ie about to our woodpile) is subject to a Floodway Overlay and therefore a planning permit would be required for anything done in the way of a fence, both Corangamite Catchment Management Authority and City of Geelong would need to be involved (you can see this area marked blue on the attachment to his email).

2. Talking about the rest of our boundary, the relevant feature of any fence is that ground levels must allow for water flow.

I asked him if a fence with wire at ground level and then timber paling above that would be acceptable and he thought that it would be.

3. He did not know much about the enforcement proceedings, he had tried to speak to Gerard but he was on leave. He said that, as general principle, if the land had been filled without a permit being obtained and enforcement proceedings commenced then no fence permit would be provided until those proceeding had resolved and therefore the land levels resolved.

On this point I asked, specifically as a hypothetical, if the land in the area of the proposed fence, say 20 feet into your property, was returned to its original level, whether a permit could be obtained for a fence to be built and he said he thought yes, provided a land surveyor attested to that. (I had in mind that you might like to scrape the soil back from the fence line).

He did say that any application for a fence permit would need to be supported by a report from a land surveyor with material as to land levels on both our properties.

It seems to me that we cannot get to work now with a land surveyor as the land levels on your property are "in limbo" subject to the result of the enforcement proceedings, unless you were prepared to return your land close to the fence line to its original level, in which case I think we can proceed.

Please let me know what you think about this? Also, do you have any time frame as to the enforcement proceedings?

I will email you a photo Bud found of a fence we think would be suitable, wire at the bottom then paling above.

[73]

The NRZ6 land is not adjacent to a Transport Zone 2. Therefore, a permit is not required for fencing within the front setback of the NRZ6 land where that fencing does not exceed 1m and is at least 50% transparent.
Mr Downing submitted that the design requirements refer only to fences within the front setback and that this does not apply to the southern boundary setback because it is a side fence and not a front fence and there are no design requirements for a side fence under DDO41.
The Table 1 design requirement for fencing applies to fencing within the 'front setback' of land and is not restricted to fences along the frontage of land. There is in planning considerations a difference between the two descriptions. The former includes all fencing whether along the frontage of land (that is the road alignment at the front of a lot) and fences along a side boundary within a certain distance from the front boundary of the land in question. The latter includes only fences along the road alignment at the front of a lot.
Given the different planning considerations between the two descriptions, the decision to describe the design requirement in Table 1 applying to fencing by reference to the location of a fence with the 'front setback' is a deliberate one. If the design requirement were to only apply to fences along the frontage of a lot, it would be so described.
What constitutes the 'front setback' for the purposes of DDO41 is not specifically defined in DDO41. Given that the term 'setback' is defined under clause 73.01 to mean 'The minimum distance from any allotment boundary to a building', I find that for the purposes of Table 1 the term 'front setback' means the minimum distance between the front allotment boundary of a lot and a building on that lot.
On the facts of this matter, the front setback is the minimum distance between the front allotment boundary (being the Carr Street frontage of the NRZ6 land) and the existing dwelling on the NRZ6 land. An exact measurement of that distance has not been provided to the Tribunal by any party, however, as can be seen from photograph 1 above, the front setback of the NRZ6 land is the area of land between the white weatherboard structure shown in photograph 1 and the stone fence along the Carr Street frontage of the NRZ6 land. There is a section of the southern side boundary fence that is located in this front setback area.
The oral evidence of Mr McCann was that the section of the southern side boundary fence located within the front setback area along the southern boundary is over 1 metre in height and not at least 50% transparent. That much is also apparent from photograph 1. The section of the southern side boundary fence located within the front setback area does not meet the design requirements for fences in Table 1 at clause 2 of DDO41 and therefore requires a permit under clause 43.02-2 of the planning scheme.
I am satisfied that the first respondent contravened the planning scheme by constructing a fence along that part of the southern boundary of the NRZ6 land that is within the front setback of the NRZ6 land without first obtaining a permit under clause 43.02-2 of the planning scheme.

[76]

Under clause 44.03-2 a permit is required to construct or carry out works, including a fence. The requirement to obtain a permit for the construction of a fence does not apply relevantly:
- If a schedule to the overlay specifically states that a permit is not required; and
- To post and wire and post and rail fencing.
Under clause 3 of the schedule to the FO, a permit is not required to construct a building or carry out works for, amongst other things:
- Repairs and routine maintenance of existing fences if the fence design and materials remain the same.
- Open fencing that complies with the Floodplain Management Authority's Guidelines for Fencing in Flood Prone Areas.
The first respondent did not contend that a permit was not required for the southern side boundary fence because of any of the relevant exemptions under clause 3 of the schedule to the FO but rather submitted that the southern side boundary fence was a post and rail fence and therefore did not require a permit under the stated exemption in clause 44.03-2 of the planning.
The first respondent submitted that the phrase 'post and rail fencing' refers to any fence that is built out of only posts and rails. Further, the first respondent submitted that the horizontal planks are rails.
There is no definition of the phrase 'post and rail fencing' in the planning scheme. There are no specific design requirements as to how many rails or how wide rails constitutes the 'post and rail fencing' specified in clause 44.03-2. There is no requirement for post and rail fencing to comply with any particular guidelines to obtain the benefit of the exemption under clause 44.03-2.
As is clearly visible from photograph 3, the component of the southern side boundary fence that is described by the first respondent as the rails are affixed to posts such that there are gaps between the rails that allow air, light and (at lower levels) water through the fence.
In the absence of further design requirements for 'post and rail fencing' for the purposes of clause 44.03-2, I am not satisfied the only post and rail fencing not requiring a permit under that clause are the examples of post and rail fencing shown relied on by the applicant at the hearing. Given that the southern side boundary fence contains gaps between the rails that will allow the passage of water, I find that the southern side boundary fence constitutes 'post and rail fencing'.
Accordingly, the construction of the southern side boundary fence on that part of the NRZ6 land affected by the FO did not require a permit under clause 44.03-2 and the first respondent did not contravene the planning scheme by constructing part of the southern side boundary on that part of the NRZ6 land affected by the FO without first obtaining a permit under clause 44.03-2.

[79]

Under clause 44.04-2 a permit is required to construct or carry out works, including a fence. The requirement to obtain a permit for the construction of a fence does not apply relevantly:
- If a schedule to the overlay specifically states that a permit is not required; and
- To post and wire and post and rail fencing.
Clause 3 of schedule 2 to the LSIO provided that amongst other things not relevant to these facts, a permit is not required to construct a building or carry out works for:
- Outbuildings and works normal to an existing dwelling, including a deck or verandah that does not exceed 20 square metres, landscaping, a pergola, driveway, carport barbeques and water tank.
Mr Downing submitted that a permit was not required for the construction of the southern side boundary for two reasons:
- the southern side boundary fence was a post and rail fence and therefore a permit is not triggered under clause 44.04-2; and
- the southern side boundary fence constitutes works normal to an existing dwelling and therefore a permit is not required under schedule 2 to the LSIO.
I refer to my reasons set out above (under the heading 'Is a permit required under the FO?') as to why I find that the southern side boundary fence constitutes 'post and rail fencing' for the purposes of clause 44.03-2. I repeat and rely on those reasons to find that the southern side boundary fence constitutes 'post and rail fencing' for the purposes of clause 44.04-2.
I reject the first respondent's submission that a permit is not required for the southern side boundary fence because it amounts to works normal to a dwelling that is for which a permit is not required under clause 3 of schedule 2 to the LSIO.
The 'exemptions' set out in clause 3 of schedule 2 to the LSIO do not apply 'If a schedule to this overlay specifically states that a permit is not required'.
In the context, where a permit is specifically required for a fence under clause 44.04-2, the general or collective reference to 'works normal to a dwelling' at clause 3 of schedule 2 does satisfy the direction contained in the statement 'If a schedule to this overlay specifically states that a permit is not required'. What would satisfy this direction would be the inclusion of 'A fence' in the list of buildings or works set out in clause 3 to schedule 2 of the LSIO.
Accordingly, I find that a permit was not required for the construction of part of the southern side boundary fence located on that part of the NRZ6 land affected by the LSIO and the first respondent did not contravene clause 44.04-2 by failing to obtain a permit the construction of part of the southern side boundary fence located on that part of the NRZ6 land affected by the LSIO.

[83]

Clause 43.01 - Heritage Overlay applies to places shown on the planning scheme map as 'HO' with a number.
HO1659 applies to 20 Carr Street, Barwon Heads which for present purposes is part of the NRZ6 land.
More specifically HO1659 applies tree controls to the cypress trees on part of the NRZ6 land situated within the front setback of the NRZ6 land (being that part of the NRZ6 land between the Carr Street frontage and the existing dwelling).[9]
Clause 43.01-1 provides that a permit is required to, amongst other things:
- Remove, destroy or lop a tree if the schedule to this overlay specifies the heritage place as one where tree controls apply. This does not apply:
  - - to any action which is necessary to keep the whole or part of a tree clear of an electric line provided the action is carried out in accordance with a code of practice prepared under Section 86 of the Electricity Safety Act 1998.
  - - If the tree presents an immediate risk of personal injury or damage to property.
In its amended application, the applicant alleged that:
- A cypress tree had been lopped leaving only the trunk; and
- Three large tree stumps along the northern boundary 'were cypress trees were cut down'.
In its final written submission (dated 20 December 2023), the applicant alleged that one cypress tree (Monterey Cyress) had been lopped and destroyed by the first respondent in contravention of clause 43.01-1. At the hearing, the applicant's representative confirmed that the applicant did not press the allegations regarding the three large tree stumps along the northern boundary referred to in the amended application.
In his oral evidence, Mr McCann identified the cypress tree that the applicant alleged had been lopped and destroyed without a permit under clause 43.01-1. The relevant cypress tree is the one shown in the photograph below that has been extracted from Exhibit 7 of the affidavit of Mr McCann. For the avoidance of doubt, I have marked the relevant Cypress tree with a red cross.

[90]

The first respondent's evidence is that he engaged Tony Lawn in December 2017 to remove the three Cypress trees identified as Tree 1, 2, and 3 in the arborist's report.
He states that an officer of the applicant advised his neighbour Lisa Guest ('northern neighbour') that a planning permit would not be required for the removal of Tree 1, 2 or 3 but that removal of Tree 4 would require a permit. The oral evidence of the first respondent was consistent with the above contents of his written statement. He also clarified that he did not ever receive a decision in respect of his permit application to remove the Tree 4.
The first respondent does not dispute that he engaged Tony Lawn to lop the Cypress tree identified as Tree 4 in the arborist report.
The first respondent refers to this Cypress tree as the 'fourth tree' in his witness statement of 14 December 2023. Relevantly, he makes the following statements regarding this fourth tree:
1. On the night of 21 October 2021 a very severe storm caused significant damage in Barwon Heads causing closure of the Geelong-Barwon Heads road due to a series of large Cypress trees down across the road. There was also significant damage to trees and property at 16-22 Carr Street. In particular, the 'fourth tree' suffered severe damage to its several remaining branches including one which clipped the corner of the Guest's new house at 24-26 Carr Street...
2. The storm on that night also caused damage to two other Cypress trees on my property and one branch penetrated a wall of the southernmost part of my house. That part was a much later addition to the original house and was unfortunately clad in asbestos-cement sheeting instead of weather boards. An authorised contractor was engaged to remove all the asbestos sheeting in that section of the building, and I decided that the internal plasterboard should also be removed by the contractor because it had become contaminated by the considerable dust and debris generated.
3. The branches still attached to the 'fourth tree' were left in a precarious state. Tony Lawn of Barwon Stump Grinding was again engaged to make safe, but the balance of the tree was not removed because I was waiting on the planning permit.
Tony Lawn, the tree removal contractor, operating under the business name 'Barwon Stump Grinding' gave evidence under summons at the hearing. Mr Lawn stated that he was an arborist, and although this qualification was not challenged by the applicant, he did not provide any evidence to the Tribunal of any formal qualification as an arborist. His evidence was that he was very familiar with the NRZ6 land having provided services to the first respondent and the first respondent's father over a long period of time.
Regarding the fourth Cypress tree, Mr Lawn's evidence was that he received a call from the first respondent's northern neighbour on or about 30 October 2021 after a severe storm event on 29 October 2021 ('2021 storm event') in which she expressed to Mr Lawn her concern regarding the condition of the fourth Cypress tree and her concern for the health and safety of construction workers on her premises engaged in the construction of her new dwelling.
Mr Lawn stated that he was hired by the first respondent to lop the fourth Cypress tree to make it safe. He stated that in his view the fourth Cypress had been in declining health for a number of years previous to the storm event in October 2021 having witnessed hanging and damaged limbs present in that tree prior to the storm event.
Following the October 2021 storm event, Mr Lawn observed that a substantial amount of the canopy of the fourth Cypress tree had been damaged and limbs were hanging damaged within the tree. He also observed a limb from the southern side of the tree had broken and was swinging northerly towards the new building on the northern adjoining land where construction workers were present. His view was that the condition of the fourth Cypress tree was that although the tree was not dead and that there were intact limbs on the tree, the damaged limbs swinging 15 metres above the ground presented an immediate risk to the health and safety of the occupiers of the NRZ6 land and its northern neighbour and also presented an immediate risk of damage to the new construction underway immediately to the north of the NRZ6 land. He was also of the view that the remaining live limbs also presented an immediate risk of personal injury and damage to property because they were of risk of failure without warning given the condition of the tree.
Mr Lawn's evidence was that although his initial instructions were to remove the fourth Cypress tree, the first respondent later instructed Mr Lawn not to remove the tree altogether and to leave the trunk of the tree in situ. Mr Lawn's evidence was that he did not actually undertake any of the lopping of the fourth Cypress tree and that the lopping was done by one of his employees.
The evidence of the first respondent was that he did not give Mr Lawn the initial instructions to remove the fourth Cypress tree, and that any instructions received by Mr Lawn regarding the fourth Cypress tree would have come from his son (Sam) informing Mr Lawn of the first respondent's direction which was to make the fourth Cypress tree safe. Despite the inconsistency between the evidence of Mr Lawn and that of the first respondent as to who gave Mr Lawn the instruction to make the fourth Cypress tree safe, I am satisfied that the first respondent is for the purpose of s 114(3)(d) a person on whose behalf the lopping of the fourth Cypress tree was being carried out.
There was no evidence before the Tribunal that would lead me to doubt the evidence of both Mr Lawn and the first respondent that the 2021 storm event did occur and that affected the area including and surrounding the NRZ6 land.
After considering the evidence before the Tribunal, I accept Mr Lawn's evidence that the fourth Cypress tree had been in decline prior to the 2021 storm event, and after that event the damaged limbs in that tree presented an immediate risk of personal injury and damage to property. In circumstances where there is evidence that the fourth Cypress tree was in decline prior to the 2021 storm event and that the remaining undamaged limbs could fail without warning following the removal of the damaged limbs, I am satisfied that the remaining undamaged limbs of the fourth Cypress tree also presented an immediate risk of personal injury and damage to property. Accordingly, a permit to remove, destroy or lop the fourth Cypress tree was not required and the first respondent did not contravene clause 43.01-1 of the planning scheme.

[91]

The NRZ6 land is wholly affected by the SLO9.
Clause 42.03-2 provides that a permit is required to, amongst other things:
- Remove, destroy or lop any vegetation specified in a schedule to this overlay. This does not apply:
  - - If the table to Clause 42.03-3 specifically states that a permit is not required.
  - - To the removal, destruction or lopping of native vegetation in accordance with a native vegetation precinct plan specified in the schedule to Clause 52.16.
Clause 42.03-3 sets out the table of exemptions to the requirement to obtain a permit under clause 42.03-2. The first respondent does not rely upon any of the exemptions listed in the table at clause 43.03.3. I will not consider those exemptions in these reasons.
Clause 3 of SLO9 provides that a permit is required to remove, destroy or lop vegetation except where any of the following requirements are met:
- The vegetation is listed as an environmental weed within the incorporated document Environmental Weeds, City of Greater Geelong, September 2008.
- The vegetation is dead.
- The vegetation is less than 3 metres in height and is not shown on an approved landscaping plan or site plan specifying its retention. This exemption does not apply to Moonah (Melaleuca lanceolata) and Coast Beard-heath (Leucopogon parviflorus).
- The vegetation has a single trunk circumference of less than 0.5 metres above ground and is not shown on an approved landscaped plan or a site plan specifying its retention. This exemption does not apply to Moonah (Melaleuca lanceolata) and Coast Beard-heath (Leucopogon parviflorus).
There are three Moonah trees located near the eastern boundary of the NRZ6 land.
In the first respondent's written submission for the hearing, he submitted that the applicant has not established that the Moonah trees along the northern boundary are those subject to SLO9 being Melaleuca lanceolata.[12] Despite this the first respondent describes the three Moonah trees as 'Melaleuca lanceolata' at paragraph 64 of his witness statement.
Richard Francis, who holds a Bachelor of Science Degree (Biology) with majors in Botany and Zoology and with 30 years of experience in ecological assessments gave evidence that the Moonah trees on the NRZ6 land are Melaleuca lanceolata and these trees form part of Ecological Vegetation Community ('EVC') 858 being Coastal Alkaline Scrub. Mr Francis made this identification from his observations of the Moonah trees using his knowledge and experience in identifying vegetation from their characteristics.
I accept the evidence of Mr Francis that the Moonah trees on the NRZ6 land are Melaleuca lanceolata, but I will continue to refer to them as Moonah trees in these reasons.
Mr Francis' evidence is that there is evidence of filling right up to the trunks of the Moonah trees and compaction of fill in the tree protection zones of the Moonah trees which he identified generally extended to two metres outside the canopy line of the Moonah trees. His evidence was also that he did not observe any evidence that any of the Moonah trees were in fact failing or dying.
While it may be that the existence of compacted fill within the tree protection zone of a tree may lead to the eventual destruction of a tree, there is no provision of the planning scheme that for the purposes of clause 3 of SLO9 deems the placement of compacted fill within the tree protection zone of a tree as constituting destruction of that tree.
No evidence was led as to the condition of the Moonah trees at the date of the hearing, therefore in the absence any evidence that any of the Moonah trees were dead as a result of the placement of compacted fill within their relevant tree protection zone, I find that no permit was required under clause 3 of SLO9 because of this activity.
The specific allegation of the applicant is that one of the Moonah trees along the northern boundary of the Carr Street land was unlawfully lopped by, or at the direction of, the first respondent without first obtaining a permit under clause 3 of SLO9 to lop a Melaleuca lanceolata.
The lopping of the branches of Moonah tree 3 occurred sometime after the October 2021 storm event and sometime before Mr McCann's inspection of the Carr Street land on 22 April 2022[13].
To avoid any doubt, I have marked on the aerial photograph below[14], the Moonah tree the subject of the applicant's specific allegation. I will refer to it hereafter as 'Moonah tree 3'.

[95]

The first respondent's witness statement stated that the work done on Moonah tree 3 was done to make it safe at the request of his northern neighbour. The first respondent's evidence was that his northern neighbour rang him sometime after the 2021 storm event and during that conversation expressed concerned that she could not access her jetty via a path that followed the northern boundary of the NRZ6 land because of the location of the branches of Moonah tree 3 across that path.
The first respondent stated that he had no personal knowledge on how the branches of Moonah tree 3 had 'fallen', however his evidence was that the branches 'probably were alive' because he didn't think the branches were dead at that the time that his northern neighbour rang him to express concern that she could not get to her jetty because parts of the branches lay across her path. The first respondent also acknowledged that once the foliage had been cut the branches were likely to have died.
The first respondent's evidence was that he did not directly speak to Mr Lawn to engage him to lop the branches of Moonah tree 3 that were of concern to his northern neighbour, but that he instructed his son, Sam, to do so.
Mr Lawn's evidence was that he was engaged (by whom is not clear to me) to do some minimal trimming of the Moonah trees at least 10 years ago but that he has not done any work on any of the Moonah trees since that time.
The evidence before the Tribunal does not establish who physically lopped Moonah tree 3 between the date of the storm event and 22 April 2022 (the date of the photograph appearing below paragraph 36 in Mr McCann's affidavit). The first respondent's son, Sam, did not give evidence at the hearing and therefore there was no evidence before the Tribunal as to how he carried out his father's instructions regarding Moonah tree 3.
I am not satisfied on the evidence before the Tribunal that, during the period between the 2021 storm event and 22 April 2022, the branches that were lopped on Moonah tree 3 did in fact fall following the 2021 storm event. This is because:
- the aerial photograph on which Moonah tree 3 has been marked by me for identification above is based on a Nearmap aerial photograph taken on 23 November 2017. This aerial photograph shows that in 2017, Moonah tree 3 is a multi-trunk tree with some trunks growing prostrate across the northern boundary of the NRZ6 land and onto the northern neighbour's land;
- there is no evidence before the Tribunal that establishes that any of the lopped branches of Moonah tree 3 were felled by natural means including by the 2021 storm event or any other weather event;
- the first respondent had no personal knowledge of how the lopped branches of Moonah tree 3 came to lay across his northern neighbour's path;
- there was no evidence before the Tribunal that the lopped branches of Moonah tree 3 were detached from Moonah tree 3 before they were cut.
There is no evidence before the Tribunal that any of the branches of the prostrate trunks of Moonah tree 3 that lay prostrate across the northern boundary of the NRZ6 land were in fact dead prior to being lopped at the direction of the first respondent. I am not satisfied on the evidence before me that the branches of Moonah tree 3 shown lopped in the photographs in Mr McCann's affidavit were dead when they were lopped sometime in the period 29 October 2021 to 22 April 2022.
The first respondent has not established any of the requirements in clause 3 of SLO9 that would obviate the need to obtain a permit under clause 42.03-2 of the planning scheme. Accordingly, a permit was required to be obtained under clause 42.0302 of the planning scheme to lop the branches of Moonah tree 3.
Mr Downing submitted that for the purposes of the allegation that a contravention of clause 42.03-2 of the planning scheme has occurred, the first respondent is not a person provided for in s 114(3) of the PE Act because although he 'passed on the request made by the neighbour to Tony Lawn', the work undertaken was not for the first respondent's benefit and the first respondent did not have any safety concerns about the location of Moonah tree 3's branches.
The evidence of the first respondence established that the first respondent did not pass on any request made by his northern neighbour to Mr Lawn regarding Moonah tree 3. The evidence does not establish that Mr Lawn in fact undertook the work of lopping the branches of Moonah tree 3. Mr Lawn says he did not do so and there is no evidence to the contrary.
I am satisfied on the evidence before the Tribunal that the lopping of Moonah tree 3 was undertaken on the behalf of the first respondent because he gave instructions for the lopping to occur to his son, Sam and it was subsequently done. It is not necessary for the work to be of any direct benefit to the first respondent. There is a sufficient casual link between the first respondent's instructions to his son, which he admitted, and the fact that the work was subsequently done to establish that the work was done on his behalf and at his direction.
Mr Downing also submitted that the lopped branches presented an immediate risk of injury to any person seeking to access to the jetty on the northern neighbour's land because such person would be required to climb over the branches of Moonah tree 3 that lay across the path. I reject that submission for the following reasons:
- The 'immediate risk of injury to any person' exemption is not one that applies to the requirement to obtain a permit under clause 42.03-1 of the planning scheme (it applies to the need to obtain a permit under clause 42.01-3 of the planning scheme); and
- I have no hesitation in finding that prostrate branches of trees lying on the ground across an outdoor pathway that leads to a jetty used for recreational purposes does not present an immediate risk of injury to a person. A person would have to demonstrate poor judgment or engage in risky behaviour before any possibility of an injury could occur. Injury to a person presented with branches of a tree lying across their path can be avoided by a reasonable person acting reasonably and therefore I cannot accept that the branches of Moonah tree 3 that were lopped presented an immediate risk of injury to a person.
Therefore, I find that that the 'emergency works' exemption contained in table 1 at clause 42.03-2 of the LSIO did not apply to the removal of the branches of Moonah tree 3.
The first respondent also relies on the 'emergency works' exemption under clause 52.17-7, however as the relevant allegation relies on the failure to obtain a permit under clause 42.03-1 of the planning scheme and not clause 52.17, it has no merit. An exemption that may apply to the requirement to obtain a permit under clause 52.17 has no bearing at all on whether a permit is required under clause 42.03-1.
For completeness, I observed that Mr Francis' evidence that Moonah tree 1 (closest to Carr Street) and Moonah Street 2 (between Moonah Tree 1 and 3) had also been lopped at some time in the past. Mr Lawn's evidence was that at least 10 years ago, some minor trimming of 'Moonah trees' occurred but it is not clear to me on the evidence before the Tribunal who gave the instruction to do this 'trimming'. The alleged contraventions notified to the first respondent did not raise any allegations regarding unlawful lopping of Moonah tree 1 or 2.
The applicant submitted that it is open to the Tribunal to find that a contravention of the planning scheme has also occurred because of the lopping of Moonah tree 1 and 2 as observed by Mr Francis. In the circumstances, I am not satisfied on the material before the Tribunal that there is sufficient evidence that the first respondent committed a contravention of the planning scheme in relation to the lopping of Moonah tree 1 or 2.

[102]

For the purposes of clause 62.02-3 of the planning scheme, clause 42.03-1 of the SLO is a provision that provides that a permit is specifically required to, amongst other things, remove vegtation. The general exemption in clause 62.02-3 therefore does not apply.
Clause 3 of SLO9 exempts the requirement for a permit to be obtained under clause 42.03-1 for the removal of vegetation where:
- the vegetation is an environmental weed;
- the vegetation is dead;
- the vegetation is less than 3 metres in height and not shown on an approved landscape plan or site plan specifying its retention;
- the vegetation has single trunk circumference of less than 0.5 metres measured 1 metre above the ground an dis not shown on an approved landscape plan or site plan specifying its retention.
The last two exemptions do not apply to Moonah (Melaleuca lanceolata) or Coast Beard-heath (Leucopogon parviflorus).
The evidence of Mr Francis was that the 145m2 area of vegetation effectively removed from the NRZ6 land by being buried by the imported fill material placed on it, was EVC858 Coastal Alkaline Scrub. Mr Francis' evidence was that Coastal Alkaline Scrub was characterised by Coast Teatree Leptospermum laevigatum, Boobialla Myporum insulare, Coast Beard-heath (Leucopogon parviflorus) and Moonah (Melaleuca lanceolata).
No evidence was led by the first respondent that challenged Mr Francis' characterisation of Coastal Alkaline Scrub or the composition of Coastal Alkaline Scrub.
Coast Teatree Leptospermum laevigatum is a shrub that grows up to 8 metres in height. Boobialla Myporum insulare is a shrub that grows to 6 metres in height. The removal of Coast Beard-heath (Leucopogon parviflorus) and Moonah (Melaleuca lanceolata) are not exempted from the requirement to obtain a permit under clause 42.03-2.
The evidence of Mr Francis was he observed the Coastal Alkaline Scrub in the PCRZ adjoining the land to the north of the NRZ6 land.
I accept the evidence of Mr Francis Coastal Alkaline Scrub includes both Coast Beard-heath (Leucopogon parviflorus) and Moonah (Melaleuca lanceolata) and species of native shrubs Coast Teatree Leptospermum laevigatum and Boobialla Myporum insulare). I am also satisfied that the photographs contained at pages 248, 249 and 252 of the Tribunal Book forming part of Exhibit 7 of the Mr McCann's affidavit show both live vegetation and dead vegetation in the relevant areas of heights greater than 3 metres. I am therefore satisfied on the balance of probabilities that the Coastal Alkaline Scrub on the NRZ6 land contained vegetation greater than 3 metres in height and contained both Coast Beard-heath (Leucopogon parviflorus) and Moonah (Melaleuca lanceolata). Accordingly, a permit was required for the removal of that vegetation under clause 42.03-2.
Further, the first respondent's submission appears to be based on an assertion that if the placement of the fill material did not require a permit under the planning scheme then the consequential destruction of native vegetation with the NRZ6 that occurred when the fill was placed on the land also did not require a permit. The submission is rejected and completely overlooks that clause 42.03-2 provides for a distinct and separate permission for the removal of native vegetation on land affected by a SLO.

[112]

The Respondent's submission that follows presents two arguments, one in the alternative to the other. The first is that the process undertaken to create the conditions for grass health and then lay the lawn falls within the meaning of the exemption provided for gardening in Clause 62.02-1. Alternatively, the Respondent submits that the process did not involve enough impact on the land to qualify as 'works' within the meaning of the phrase 'construction of a building or the construction or carrying out of the works'.
The Respondent relies on the written statement and evidence of Dr Andrew Downing that provides that the previous conditions of the site were not conducive to grass health due to the dished nature of the site, the lack of appropriate drainage and the fact that rainfall would cause boggy patches. These boggy conditions did not allow the grass to thrive. The fill was required to achieve the conditions required to grow grass which is, and always has been, an essential element of the garden. The purpose of importing the fill was to provide the conditions necessary for the health of the lawn.
Further, because the gardening exemption site above the overlays, it is therefore inappropriate to use any issues contained within an overlay as an interpretative aid to determine the scope of the exemption 'gardening'.
The meaning of gardening determined in this case, must therefore apply to all other cases involving gardening under this scheme, regardless of the overlays or other planning controls that may or may not apply. This would include a farming property in regional Victoria as well as an inner-city suburban allotment.
Mr Downing's submission at the hearing was that the Tribunal should first determine whether the importation and placement of fill by the first respondent was 'gardening' for the purpose of clause 62.02-1 before determining whether that act was 'works' as defined in s 3 of the PE Act.
The applicant submitted that the Tribunal should first consider whether the importation and placement of fill by the first respondent constituted 'works' as defined in s 3 of the PE Act and only if it does, then consideration of whether the 'gardening' exemption in clause 62.02.1 arises.
Clause 62.02-1 applies to any requirement in the planning scheme (other than one in the PCRZ) relating to the construction of a building or the construction or carrying out of works. This means that clause 62.02-1 applies only where there is first a requirement under the planning scheme to obtain a permit for the construction of a building or the construction or carrying out of works. Accordingly, I agree with the applicant that first I must consider whether any provision of the planning scheme required the first respondent to obtain a permit for the carrying out of works.
The specific alleged contravention of the planning scheme of the applicant is that the filling of land undertaken by the first respondent constituted the 'carrying out of works' and permits were required under the following clauses of the planning scheme:
- for the NRZ6 land:
  - clause 43.02-2 - DDO41;
  - clause 44.03-2 - FO;
  - clause 44.04-2 - LSIO;
  - clause 42.03-2 - SLO; and
- for the PCRZ land:
  - clause 36.03-2 - PCRZ;
  - clause 42.01-2 - ESO; and
  - clause 44.03-2 - FO.
The first question to be answered therefore is whether the importation and placement of fill material on the NRZ6 land and the PCRZ land constitutes 'the carrying out works' for the purposes of the clauses set out above.
There is no definition of 'works' in the planning scheme.
Clause 73 of the planning scheme directs that a term used in the planning scheme has its ordinary meaning unless that term is defined:
- in the planning scheme; or
- in the PE Act or the Interpretation of Legislation Act 1984 (Vic), in which case the term has the meaning given to it in those Acts unless it is defined differently in this scheme.
Section 3 of the PE Act relevantly defines the following terms:

[119]

The first question involves, ultimately, considerations of degree. "Development" in s.342T is defined as including "the erection of any building, and the carrying out of any work..." In Parramatta City Council v Brickworks Ltd, the High Court gave some consideration to the meaning of the word "work" in a context related, but not identical, to the context relevant to the present dispute. In the course of his judgment, Gibbs J said at p.263: "It may be doubted whether 'work', in its strict dictionary meaning, would nowadays include a quarry, but like the word "works" considered in cl.3 that the connotation of the word in cl.33 must include something which has been carried out on land, and is situated on land, but is mot a building or structure. Having regard to the wide meaning of the word 'structure' it is impossible to resist the conclusion that 'work' must be intended to refer to something done to the land itself, and that it therefore includes a quarry or mine."...

As was pointed out during the course of argument, the depositing of filling on land may or may not be of such significance as to be regarded as a "work", and thus a "development", within the relevant legislation. The building-up of a large sports ground or oval could readily and properly be regarded as a "work". At the other end of the scale, the construction of a private garden of a small earth pocket in which to plant a shrub would not seem of such significance as to justify description as a "work". In selecting where, between these two extremes, the present case falls, I am of the view that both the quantity of the filling as well as its significance in relation to the site is of importance. The spreading of 1,200 cubic yards of filling or topsoil over a very large area might well not be of such significance as to amount to a "work". But the depositing of that quantity in a suburban allotment, having the effect of building up the height of that allotment at one corner to a point eight feet six inches above its natural level, and the creation of a relatively level surface extending over most of a block of land such as this is, in my view, a "work" within the meaning of the Act. I am accordingly of the view that the deposition of this amount of filling amounted to "development".

[132]

Clause 43.02-2 of the Design and Development Overlay provides that a permit is required to:
- Construct a building or construct or carry out works. This does not apply to -
  - - If a schedule to this overlay specifically states that a permit is not required.
  - - To the construction of an outdoor swimming pool associated with a dwelling unless a specific requirement for this matter is specified in a schedule to this overlay.
  - - To the construction of a building or construction or carrying out of works for a small second dwelling if all the following requirements are met:
    - The building height must not exceed 5 metres.
    - The building must be finished using muted tones and colours.
- Construct a fence if specified in a schedule to this overlay.
Clause 2 of DDO41provides that a permit is not required to -
- construct one dwelling on a lot that meets the design requirements of Table 1;
- extend one dwelling on a lot that meets the design requirements for site coverage in Table 1;
- construct a fence, unless the fence meets the design requirement for fencing in Table 1.
Mr Downing submitted that if the deposition of fill constitutes 'works' and is not 'gardening', then the 'works' are in compliance with Table 1 at clause 2.0 of DDO41. This is because there is an existing dwelling on the NZR6 land and the first respondent has plans for a future dwelling.
I reject that submission.
Table 1 at clause 2 of DDO41 does not apply on the facts of this matter. Clause 43.02-2 of the DDO provides that a permit is required to construct a building or carrying out works. This requirement does not apply if a schedule to the DDO specifically states that a permit is not required.
Table 1 at clause 2 of DDO41 applies only to dwellings and fences that are proposed to be constructed. This provision does not apply to lawful existing dwellings or fences.
As the deposition of fill is 'works', not 'gardening' and requires a permit under clause 43.02-2, the first respondent has contravened the planning scheme by not obtaining a permit under clause 43.02-2 of the planning scheme.

[151]

The purpose of requiring a permit under the LSIO and the FO for works such as those undertaken by the first respondent is so that the responsible authority and all relevant stakeholders such as the Corangamite Management Authority and Parks Victoria (as adjoining land manager) can carefully consider any proposal to fill land affected by an LSIO and FO to ensure the above objectives are properly considered on a permit application that includes, amongst other things:[17]
- A location plan drawn to scale showing boundaries and dimensions of the site, surrounding uses, the layout of existing and proposed buildings and works and the distance to coast or estuary.
- Elevation plans taken under the direction and supervision of a licensed land surveyor showing natural ground level, finished ground level and the floor levels of any existing and proposed buildings in relation to both Australian Height Datum (AHD) and the level as nominated by the relevant floodplain management authority at 2100.
- A detailed site plan with 0.5 metre contours showing the layout of existing and proposed buildings and works, watercourses, access roads, vegetation and all infrastructure that may be affected by flooding, sea level rise or coastal inundation, taken by or under the direction and supervision of a licensed land surveyor.
- Whether the proposed use or development could be located on flood-free land or land with a lesser flood hazard outside this overlay.
- The effect of the development on the redirecting or obstructing floodwater, stormwater or drainage water and the effect of the development on reducing flood storage and increasing flood levels and flow velocities.
- The effects of the development on river health values including wetlands, natural habitat, stream stability, erosion, environmental flows, water quality and sites of scientific significance.
The evidence relied on by the first respondent (his own expert evidence) and that of Mr Roubal does not satisfy me that I should exercise my discretion not to make enforcement orders to address the contraventions of the DDO, FO, LSIO, SLO, PCRZ and ESO arising from the deposition of fill by the first respondent on the NCRZ6 land and the PCRZ land.

[165]

The first respondent must cease all works on 16-22 Carr Street, Barwon Heads, Victoria, 3227 ('land') and of part of the Barwon River on which the first respondent has placed fill material ('River land') unless permitted by permit obtained for the construction or carrying out of works.
Within 30 days of the date of this order or at such later date agreed to in writing by the responsible authority, the first respondent must remove the part of the fence along the southern boundary of the land situated in the front set back of the land.
Within 90 days of the date of this order or at such later date agreed to in writing by the responsible authority and the second respondent, the first respondent must:
1. engage a licensed surveyor to identify and mark out the extent of fill material placed on the land and the River land;
2. engage a suitably qualified expert to prepare a report that identifies the composition of the fill material placed on the land and the River land for the purpose of identifying the required method of removal and place of disposal of the fill material; and
3. provide a copy of report prepared under 3(b) above to the responsible authority and the second respondent.
Within 30 days of the receipt of the report provided under 3(c) above, the responsible authority and the second respondent must inform the first respondent of any permissions or authorisations required from the responsible authority, the second respondent or any relevant third parties for the removal of the fill material from the land or the River land.
Within 30 days of receipt of the information from the responsible authority and the second respondent respectively under 4 above, the first respondent must make application to obtain any permission or authorisation required to be obtained for the removal of the fill material from the land and the River land.
Within 150 days of receiving all required permissions or authorisations for the removal of the fill material or such later date agreed to by the responsible authority and/or second respondent (as the case requires), the first respondent must remove all the fill material from the land and the River land in accordance with the report provided under 3(b) above.
If no permissions or authorisations are required to be obtained for the removal of the fill material from the land or the River land, the first respondent must remove all the fill material from the land and the River land in accordance with the report provided under 3(b) above within 150 days of providing the report to the responsible authority under 3(c) above.
Within 60 days of the date of this order or at such later date agreed to by the responsible authority and/or the second respondent (as the case requires), the first respondent must provide:
1. to the responsible authority and the second respondent, a report prepared by a suitably qualified expert containing a revegetation and rectification plan for the River land; and
2. to the responsible authority, a report prepared by a suitably qualified expert containing:
  1. a revegetation and rectification plan of that area of the land on which the Coastal Alkaline Shrub has been destroyed by the placement of fill material as shown in figure 2B as 'Removed Vegetation (Private Land)' in the expert witness statement of Richard Murray Francis dated 13 December 2023; and
  2. recommendation for the replacement of the lopped Melaleuca lanceolata on the land.
The revegetation and rectification plans provided under 8(a) and 8(b) above must:
1. show the areas to be revegetated including details of the species of plants, trees and shrubs to be planted, the quantity and size of tube stock and the period of time over which planting will be carried out; and
2. identified the method and timing of the removal of the fill material; and
3. include a maintenance plan for a specified period for the maintenance and management of the affected areas.
Within 14 days of receipt of the report provided under 8 above, the responsible authority and/or the second respondent (as the case requires) must inform the first respondent of any amendments to the revegetation and rectification plan proposed in the report provided.
Within 14 days of receipt of the amendments provided under 10 above or such later date agreed to by the responsible authority and/or the second respondent (as the case may be), the first respondent must provide amended revegetation and rectification plan to the responsible authority and/or the second respondent.
Upon approval of the rectification and revegetation plans by the responsible authority and the second respondent (as the case requires), the first respondent must carry out the plans as approved.
Within 60 days of the date of this order, the first respondent must provide:
1. a native vegetation offset report for the land to the responsible authority; and
2. a native vegetation offset report for the River land to the responsible authority and the second respondent; and
3. obtain the offsets set out in the reports and provide the certificate from the broker confirming the obtaining of the offsets to the responsible authority and/or the second respondent (as the case requires).

Greater Geelong CC v Downing

At a glance

Court

Decision date

Source

Judgment (176 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (2)

Greater Geelong CC v Downing (No. 2) [2025] VCAT 325 (11 April 2025)