Mr Robert Szymanski, town planner appeared for Nillumbik Shire Council

1. As a result of a VCAT hearing on 4 October 2007, the Tribunal directed Nillumbik City Council to issue Mr Maino with a subdivision permit for the subdivision of 216 Broadgully Road, Diamond Creek into two lots. On 6 December 2007 council issued Mr Maino with Permit No. 289/2007/14P.
2. Mr Maino returns to the Tribunal with a section 149A application seeking the following three declarations from the Tribunal:

1. Nillumbik Council obey VCAT order P1904/2007 and allow the subdivision to proceed notwithstanding that vegetation has been (legally) removed since the order was made. 2. If the Tribunal nevertheless requires the permit to be amended it instructs Nillumbik Council to promptly make an appropriate amendment to the permit.

1. The Tribunal instructs Nillumbik Council not to obstruct the subdivision while and until a determination is made by the Tribunal if the matter cannot be resolved quickly.
2. Mr Maino's subdivision permit contains the following relevant conditions. Firstly, before the Plan of Subdivision is certified amended plans must be submitted to, approved by and endorsed by the responsible authority to the permit. Amended plans must be:

... generally in accordance with the plans submitted on 28 May 2007, but modified to show:

1. Verification of the location of the four Red Boxes identified on Lot 2 and the building envelope amended to ensure that it is set back a minimum of 5 metres from the centre of any tree trunk.

1. The "plans submitted on 28 May 2007" clearly show four red box trees and two long leaf box trees on a "provisional features survey" plan outside a building envelope for an "existing dwelling" on Lot 1 and outside a "proposed building envelope" for proposed Lot 2 on the proposed Plan of Subdivision.
2. Secondly, Condition 4[1] requires vegetation management areas to be shown around each building envelope.
3. Thirdly, prior to certification of the subdivision, the owner must enter into a Section 173 Agreement pursuant to the Planning and Environment Act 1987 for Lot 2. "The Agreement shall require that:
   1. No native vegetation located outside the building envelope for each lot must be removed, destroyed or lopped unless with the prior written consent of the responsible authority".
4. Mr Maino has:
   1. not submitted a Plan of Subdivision for certification to council;
   2. not submitted amended plans for endorsement pursuant to Condition 1 of the subdivision permit verifying the location of the four red boxes and ensuring that the building envelope setback is a minimum of 5 metres from the centre of any tree trunk;
   3. not lodged amended plans for endorsement pursuant to Condition 1 showing the Condition 4 vegetation management area amendments;
   4. neither prepared nor entered into an agreement with the responsible authority under Section 173 of the Planning and Environment Act 1987 for Lot 2 requiring that no native vegetation located outside the building envelope for each lot be removed, destroyed or lopped unless with a prior written consent of the responsible authority.

1. The four red boxes referred to in Condition 1 of the 2007 Subdivision Planning Permit have been removed from the subject land. Mr Maino submits that pursuant to clause 52.17 of the Nillumbik Planning Scheme, native vegetation "within 10 metres of the building" can be removed without planning permission provided another permit overlay or trigger does not exist.
2. Of the four red boxes, two lay within 10 metres of the existing house on Lot 1 of the subdivision permit. The other two southern-most red boxes were not within 10 metres of that existing dwelling. However, a shed was relocated from a difference portion of the subject land to within 10 metres of these last two red boxes, so that the last two red boxes ended up being "within 10 metres of a building". The responsible authority does not know whether the shed was relocated to its new and current position before the two southerly red boxes were removed or afterwards. Council submits that the ESO1 mapping is borderline as far as the two southern-most red boxes are concerned, but has so far given Mr Maino the benefit of the doubt.
3. Council is not prosecuting Mr Maino for removal of the four red boxes, because it maintains that to date, he has not acted on his subdivision permit and, putting aside the question of where the ESO1 controls begin and end, may generally not be in breach of the Nillumbik Planning Scheme Clause 52.17.
4. Council however submits that were Mr Maino to lodge an application for certification pursuant to his subdivision permit (thus commencing to act upon his subdivision permit), it would be unable to certify any subdivision plans unless they strictly complied with the Conditions 1, 4 and 5 of Permit No. 289/2007/14P issued 6 December 2007. I agree with council. These conditions were clearly a critical factor in Member Hadjigeorgiou's decision[2].
5. Mr Maino submits that he cannot show the four red boxes referred to in Condition 1(c) on amended plans because they no longer exist. That may be so, but he will then need to either obtain a fresh subdivision planning permission which does not refer to the red boxes or obtain an amendment to his existing planning permit, omitting any reference to the red boxes.
6. In the meantime, Mr Maino is not entitled to any declarations against the responsible authority because he has not:
   1. lodged any amended plans with council pursuant to his Subdivision Permit Condition No. 1;
   2. applied for certification;
   3. complied with any other subdivision permit conditions.
7. He is also unable to do any of the above unless he obtains a different subdivision planning permission. Accordingly I dismiss his application for three declarations.

[1] Whose requirements also have to be shown on the amended plans to be endorsed under Condition 1

[2] Maino v Nillumbik Shire Council [2007] VCAT 2323 (3 December 2007)