1. On 22 June 2007[1], I issued an interim decision analysing the facts of this case as well as case law on fences and on structures that could not be characterised as fences. I concluded that:

It is a matter of fact and degree whether a structure is a fence or serves another purpose.

It is my opinion that, applying Tsobanis[2], Leibler[3] and Herd[4], a structure that varies in height between 1.8-2.5 metres can still be characterised as a fence, provided it serves the function(s) of a fence discussed above.

However, I note that the 'fence' posts are 4.0 metres in height and do not correlate with the fence height.

If Mr Hill, as he represented to me at the hearing, cuts down the height of these posts to the same height as the fence, I would be prepared to make a declaration under the Planning and Environment Act 1987, s.149A that the structure is a fence, which requires no planning permission.

The parties must advise me within thirty days of the date of this Interim Decision, whether Peter Hill has cut down the large treated pine poles approximately 4 metres high, to equate with the height of the structure.

1. After some delay by Mr Hill, who first advised by undated letter[5]:

...I will remove the fence within the next week...and soon after have the posts replaced with steel posts of the correct height ....

...the applicant has ensured no fence posts of 4 metres remains.

1. After some doubt on my part as to whether he had cut down the large treated pine poles approximately 4 metres high, so that they equated with the height of the fence, VCAT wrote the following letter to council[6] on 20 September 2007:

Member Komesaroff requests that the Responsible Authority send her photographs of all fencing between the boundaries of Mr Hill's premises and his three neighbours at No. 1 (Murphys), No. 2 (Fenwicks) and No. 4 (Hallidays) Lord Court Echuca, with notations on each photograph indicating:

1. which property boundaries the photos reference;
2. the type and height of both the fencing and fence posts in existence at the date of the photograph.

Member Komesaroff also seeks advice from the Responsible Authority on whether they wish to withdraw their s.114 Enforcement application or deal with that application in a different way, stating how.

1. On 26 September 2007, council confirmed by attached annotated photos that, amongst other information, the height of remaining posts was no higher than 2.4 metres, some fencing and posts between neighbours had been removed and some fencing between neighbours remained at 1.6 metres in height.
2. Council also sought to withdraw its enforcement application in that same letter, given compliance by Mr Peter Hill with my Directions, saying:

Following Tribunals decision to make a declaration that the structure is a fence, council can no longer substantiate its case.

1. On the first day of the hearing, Council's enforcement proceeding was adjourned, pending my decision on Mr Hill's s.149A declaration application.
2. I am now prepared to make the declaration sought by Mr Hill, that:
   1. a structure that varies in height between 1.8-2.5 metres, with supporting posts to the same height as the structure, can be characterised as a fence, provided it serves the function(s) of a fence, and that
   2. no permit for a fence is required under the Campaspe Planning Scheme.
3. I am also prepared to grant council leave to withdraw its enforcement application, even though Mr Hill opposes council's withdrawal request. Messrs Fenwick, Halliday and Murphy either expressly or impliedly gave their consent.
4. Mr Hill's reason for opposing withdrawal of enforcement proceedings against him is that he believes council:

launched an untenable proceeding against him on a case that had no merit.

1. I remind Mr Hill that were his belief true, I would have had no need to issue Interim Directions, requiring him to cut down the large treated pine poles approximately 4 metres high, to equate with the height of the structure. All I would have had to do is issue the declaration in his favour, because the matter would have been clear-cut.
2. But the matter was not clear cut. His structure was such that, had he insisted on retaining 4.0 metre high posts to a 1.8-2.5 metre high structure, there remained room to convert the fence into a something with a function different to a 'fence', and it is this potential that my interim directions were trying to resolve. Council's case certainly had merit until Mr Hill took the opportunity I gave him to reduce the size of the fence posts to align with the fence height of between 1.8 - 2.5 metres overall.

[1] Hill v Campaspe SC [2007] VCAT 1067 (22 June 2007)

[2] [2000] VCAT 842, Deputy President Macnamara

[3] (1992) 8 AATR 188, Nathan J

[4] (1997) 20 AATR 293, Batt J