2.1 a works program for the Revegetation Works in order to (as near as is practicable) recreate the species composition and form of the original native vegetation (which would have existed at the subject land prior to clearing for agriculture) within a two year period;

2.2 the species composition of the Revegetation Works:

2.3 the methodology for the establishment of the Revegetation Works;

2.4 the protection of the Revegetation Works from vermin, native animals and domestic animals;

2.5 the protection of the Revegetation Works from weeds and insect pests and the like; and

2.6 the ongoing maintenance of the Revegetation Works.

The Revegetation Report must be to the satisfaction of the responsible authority, in consultation with the Department of Sustainability and Environment.

3 I order the respondent to pay the costs of the responsible authority in relation to the proceeding to date, including this day, with the quantum of such costs to be assessed or settled by the Principal Registrar.

4 I adjourn the hearing of the application until 17 February 2006 for the purpose of then considering what other or additional orders should be made.

5 I grant liberty to apply.

(given orally at the hearing and subsequently revised)

1 The Greater Shepparton City Council has applied for an enforcement order against Buckley Sawmills Pty Ltd as a result of the destruction of native trees by poisoning. The relevant land is affected by clause 52.17 of the Greater Shepparton Planning Scheme which, subject to certain exceptions that do not appear relevant, requires a planning permit to remove, destroy or lop native vegetation.

2 The respondent, having received notice of the application, has not objected to it. In these circumstances, by reason of section 116 of the Planning and Environment Act 1987, the tribunal may make any enforcement order it thinks fit in respect of the land; it is not necessary that the tribunal hold a hearing, of which the respondent is given notice, before determining the matter. As matters have transpired, the respondent has been given notice of this hearing today and, if its representatives had attended they would have been heard. Thus the respondent has had, in effect, two opportunities to object to the making of the proposed order; and has not availed itself of either opportunity.

3 In summary, the evidence is that there are some 55 native trees which have been poisoned with a herbicide. Some of these trees have died. Other trees are in the process of dying. It would appear to have been a deliberate act.

4 Further details about the breach of the planning scheme is outlined in a written submission of the responsible authority dated 25 November 2005; and is supported by two affidavits of Sharlene Kim Still dated 23 November 2005 and a statement by Rolf Weber, a senior flora and fauna planner with the Department of Sustainability and Environment, dated 21 June 2005. I rely upon that submissions and that evidence, copies of which will be retained on the tribunal's file. Having regard to that evidence, it would appear that the conduct that has occurred on the respondent's land has been wanton and in clear breach of the requirements of the planning scheme. I infer that the respondent, the occupier of the land, is responsible for the conduct.

5 In 2004 a planning permit was granted by the responsible authority permitting the removal of four red gums. However this is not relevant to the trees the subject of the present application.

6 As some of the trees have died it is unnecessary for me to decide whether the poisoning of a tree which is dying, but is not yet dead, involves the "destruction" of that tree. Nonetheless I think I can have regard to all the evidence, including evidence in relation to trees that have been poisoned but are not yet dead, in determining what is the appropriate order to make in response to this serious breach of Victoria's planning laws.

7 Accordingly, I propose to make an order to require the preparation of a revegetation report which will involve a detailed works program for the establishment, protection and ongoing maintenance of 1,000 local indigenous trees and shrubs on the subject land. The order requires this report to be prepared within 60 days of this order.

8 I will otherwise adjourn the proceeding. This will enable the tribunal to be in a better position to determine what other orders should be made having received the said revegetation report. Clearly it is intended that a further order be made in this proceeding to require the revegetation works, described in a satisfactory revegetation report, to be carried out. My present inclination would be that such works should be carried out before the summer of 2006/2007, that is within a period of about 12 months from now. However it may be necessary to revisit this in the light of any submissions that are made by the respondent.

9 Another matter that will need to be determined subsequently is whether the requirement to implement the content of the revegetation report should be included in an agreement pursuant to section 173 of the Planning and Environment Act.

10 In my opinion it is fair that I make an award of costs in favour of the responsible authority. As it is not practicable to fix those costs today, I will make an order that those costs be assessed by the Principal Registrar.