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[2001] VCAT 841
procedural. Enforcement order application dismissed pursuant to s 75(1)(a) as lacking in substance; question of costs reserved for potential further hearing upon application (Order; Reasons [12], [13], [15]).
Applicants sought an enforcement order alleging respondents were keeping greyhounds contrary to a permit. By the directions hearing it was common ground respondents had moved away and no dogs remained. The applicants did not formally withdraw; the Tribunal dismissed the application under its procedural power as lacking substance because there was no ongoing or likely future contravention, and it reserved the question of costs. Dismissal does not prevent a fresh application if breaches recur.
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1,716 words · generated 13/07/2026
This is a short procedural decision of the Victorian Civil and Administrative Tribunal concerning an application for an enforcement order under s 114 of the Planning and Environment Act 1987. The applicants, Michael Ward and Suzanne Connaughton, lodged an application asserting that the respondents, James and Robin Hughes, were keeping greyhounds on Lot 3 Howes Creek Road, Mansfield, contrary to the conditions of a planning permit. The Responsible Authority was the Delatite Shire Council. The matter came before Senior Member Russell Byard at a directions hearing.
No linked legislation citations have been extracted yet.
At the directions hearing on 7 February 2001 it was reported that the respondents had ceased keeping greyhounds and had vacated the property (Reasons [1]). The Tribunal ordered occupiers to provide reasonable access to confirm cessation, and the hearing was adjourned (Reasons [1], [3]). Subsequent correspondence and steps followed: the Registrar put the case in abeyance and gave three weeks' notice that if no request to set the matter down was received the Tribunal would consider striking it out for want of prosecution (Reason [6]). The applicants' solicitors replied on 22 May 2001, discussing a planning consultant and counsel but did not request withdrawal and did not indicate service on other parties as required by the Practice Directions (Reasons [7], [9]).
Having found as a matter of fact that the respondents had moved out and there were no greyhounds on the land, and noting there was no reasonable apprehension of recurrence, the Tribunal considered the proceedings lacked substance and dismissed the enforcement application pursuant to s 75(1)(a) (Reasons [8], [12]). The Tribunal reserved the question of costs (Reason [13]) and made an order dismissing the enforcement order application (Order).
The Tribunal's decision rested on three linked factual and procedural findings.
Factual cessation of the alleged contravention: It was accepted by the parties (or at least became common ground) that the Hughes had moved away and that there were no greyhounds remaining on the land (Reasons [1], [2], [8]). On that basis the Tribunal found there was currently no contravention of the planning laws and therefore no present basis for making an enforcement order (Reason [8]).
Lack of reasonable apprehension of recurrence: The Tribunal went further and concluded that the circumstances did not give rise to a reasonable apprehension that a contravention was threatened or likely to be recommenced in the foreseeable future (Reason [12]). That absence of a real prospect of imminent repetition meant the enforcement application had no present substance.
Procedural posture and applicants' inaction: The applicants did not apply to withdraw the proceedings. The Registrar had put the matter in abeyance and warned of possible striking out; the applicants' correspondence did not request withdrawal and did not comply with the Tribunal's Practice Directions as to service on other parties (Reasons [6], [7], [11]). Given the factual position and apparent absence of prosecution or a timely request to withdraw, the Tribunal exercised its power under s 75(1)(a) to dismiss proceedings for lacking substance (Reason [12]).
The Tribunal emphasised that dismissal at this procedural stage is without prejudice to future enforcement action should a contravention occur or be recommenced: "That would not prevent a further application being made at a later stage if some contravention should later occur" (Reason [2]).
The Tribunal also addressed costs. Although sceptical that the applicants would be entitled to costs given the course of events, the Tribunal reserved the question to permit submissions from interested parties and to allow properly framed applications, including particulars of the costs sought (Reasons [13], [15]).
The judgment is primarily an application of established tribunal procedure rather than a statement altering substantive law. It applies:
Before this decision, the parties and the Tribunal were operating on the established framework that enforcement orders are intended to address current contraventions or where there is a reasonable apprehension of contravention. After the decision, the practical effect is a reaffirmation that where alleged breaches have ceased and there is no reasonable prospect of recurrence, the Tribunal may dismiss enforcement applications as lacking substance, particularly where applicants do not take steps to withdraw or to advance the matter.
The decision clarifies the Tribunal's readiness to manage its docket and to dismiss stale or obsolete proceedings to prevent undue consumption of parties' time and Tribunal resources (Reasons [5], [11]).
"It is appears to be common ground that the Hughes have moved out and, more to the point, that there are no greyhounds on the land. There is no contravention of the planning laws and no basis for making an enforcement order." (Reason [8])
Plain English: Everyone agreed the respondents had left and there were no dogs left on the property, so there was nothing for an enforcement order to address.
"That would not prevent a further application being made at a later stage if some contravention should later occur." (Reason [2])
Plain English: Dismissing the current application does not stop someone from bringing another enforcement application in the future if the problem happens again.
"Withdrawal is something that usually granted upon a request of an applicant." (Reason [11])
Plain English: If the applicants want to stop the case, they should formally ask to withdraw it. Because they did not, the Tribunal took steps itself.
"Since the Applicants have not applied to withdraw the proceedings, I now propose to dismiss them pursuant to s 75(1)(a) as lacking in substance." (Reason [12])
Plain English: Because the applicants did not ask to withdraw and the case had no real substance, the Tribunal is dismissing it under its power to do so.
"I will reserve the question of costs as requested, but that is not to be taken as an indication that I think that the Applicants are likely to be entitled to costs..." (Reason [13])
Plain English: The Tribunal is leaving the costs issue open for later argument, but is signalling that it doubts the applicants will win on costs.
This decision applies in straightforward fact patterns where:
In such circumstances the Tribunal may treat the proceeding as stale or lacking in substance and dismiss it under its procedural powers, albeit without preventing fresh enforcement proceedings if non-compliance recurs.
The judgment itself does not cite or apply later authorities nor does it report subsequent treatments by higher courts. From this decision alone one cannot identify how later courts or tribunals have treated this particular decision. The decision is of a procedural, interlocutory character in VCAT and primarily provides guidance on case management and the exercise of s 75(1)(a) powers in the context of enforcement applications under s 114 of the Planning and Environment Act.
Practitioners seeking to understand how higher courts have treated similar dismissals for lack of substance should consult subsequent VCAT or judicial decisions and any appellate consideration of s 75(1)(a) dismissals. That material is beyond the scope of this judgment and is not contained in the reasons here.
When is the Tribunal's threshold for "reasonable apprehension" of recurrence satisfied? The decision finds no reasonable apprehension on the facts but does not elaborate a general test beyond the factual conclusion (Reason [12]). Practitioners will need to rely on other authorities or future decisions for a more granular standard.
How will the Tribunal quantify and assess costs where an enforcement application is dismissed as lacking in substance? The Tribunal reserved costs and requested particulars for any contested hearing (Reasons [13], [15]). The decision does not resolve whether a successful respondent in similar circumstances will recover costs routinely or only in exceptional cases.
What procedural steps must applicants take when deciding to maintain a matter that appears obsolete? The Tribunal criticised deficiencies in applicants' correspondence with the Tribunal and failure to copy other parties in accordance with Practice Directions (Reasons [7], [11]). There remains some uncertainty as to the extent and form of evidence or explanation the Tribunal expects before declining to dismiss an apparently obsolete enforcement application.
How will tribunals weigh the public interest in enforcement of planning controls against the public interest in efficient case management and preventing stale proceedings? This decision leans towards efficient case management where no contravention exists, but a more elaborate balancing articulation could be helpful in future decisions.
Does dismissal under s 75(1)(a) carry different consequences than withdrawal for purposes such as costs or settlement effects (e.g. effect on property sales)? The Tribunal noted that the respondents had difficulty completing a land sale because of the pending proceedings (Reason [5]). The practical difference between dismissal and withdrawal in terms of litigation risk, costs exposure and commercial consequences might require further elaboration in future decisions.
Conclusion: Ward v Delatite SC is a concise illustration of the Tribunal's case-management function in planning enforcement matters. It reinforces that enforcement proceedings must address a live contravention or a clear risk of repetition, and that applicants who do not withdraw obsolete proceedings may find the Tribunal dismissing them under s 75(1)(a). The decision leaves costs and certain procedural nuances open, so practitioners should approach similar facts with prompt, clear steps to withdraw or advance matters, and with careful attention to Tribunal Practice Directions.
Lot 3 on Plan of Subdivision No. 88924, Parish of Loyola being the land in Certificate of Title Volume 8855 Folio 525.
Ms T Heber, solicitor of the firm of Maddock Lonie & Chisholm, solicitors, appeared for the Responsible Authority.
Mr David O'Brien, barrister, appeared on the instructions of the firm of J King & Associates, solicitors for Mr & Mrs Connaughton.
There was no appearance by or on behalf of Mr & Mrs Hughes.
Directions hearing in relation to an application under s 114 of the Planning and Environment Act 1987 (PE Act) for an Enforcement Order.
Failure to comply with conditions of permit allowing keeping of greyhounds.
1. This matter was before me at a Directions hearing on the 7 February 2001. It is my recollection that, at that hearing, I was informed that the circumstances giving rise to the application for an enforcement order had been resolved in that Mr & Mrs Hughes had ceased keeping greyhounds on the land. At any event the matter was adjourned to a date to be fixed and the occupiers were ordered to give reasonable access to the land, as I recall it to confirm that the use had ceased.
2. It has become common ground that Mr & Mrs Hughes have moved away and that there are no greyhounds on the land. That having been confirmed I would have thought it was entirely appropriate that this application for an enforcement order should be withdrawn. That would not prevent a further application being made at a later stage if some contravention should later occur.
3. At the hearing on the 7 February 2001 the further hearing that had been set down for 2.15 p.m. on Tuesday 13 February 2001 was adjourned to a date to be fixed. I anticipated, at that stage, that it was likely that the matter would be withdrawn.
4. Since then the solicitors for the Applicants for an enforcement order have been reluctant to commit themselves or their clients to the step of actually withdrawing the proceedings.
5. In the meantime correspondence from Mr & Mrs Hughes has indicated that they have sold the land but they are having difficulties arranging settlement because the purchaser is apprehensive about these pending proceedings. I trust that Mr & Mrs Hughes provided copies of their correspondence with the Tribunal to the other parties in accordance with the Practice Directions of the Tribunal.
6. On the 1 May 2001 a letter from the office of the Registrar was sent to the solicitors for the Applicants for an enforcement order saying that the case would be held in abeyance for a further three weeks and if that no request for the matter to be set down for hearing was received within that time consideration would be given to striking the matter out for want of prosecution.
7. A reply dated 22 May 2001 has been received. Contrary to the Practice Directions of the Tribunal it contains no indication that copies of it were sent to the other parties. The letter makes reference to the engagement of a planning consultant and the obtaining of a report from such consultant. It is not clear why all this is being done in circumstances when the letter also states:-
"The respondents moved out of their premises with their dogs soon after the application was instituted by our clients and alleged that the property had been leased to others."
8. It is appears to be common ground that the Hughes have moved out and, more to the point, that there are no greyhounds on the land. There is no contravention of the planning laws and no basis for making an enforcement order. In spite of all this the letter goes onto talk about the planning consultant preparing a report and the case being referred to counsel "for his opinion".
9. The letter further goes on to refer to the possibility that it is appropriate for this application to be withdrawn. The letter says:-
In these circumstances, if it is appropriate that the application be withdrawn, it occur on the basis that our clients' rights be reserved in relation to:
* the rights of reinstatement or commencement of a separate enforcement order should dogs be brought back onto the property;
* reservation of our clients' rights in relation to the costs which they have incurred as a result of the breaches of the planning permit.
10. The letter claims that they have incurred considerable costs.
11. It appears that considerable costs are being incurred by the continued maintenance, and failure to withdraw, an application that is now obsolete. This failure is also consuming time and resources of the Tribunal. This letter of the 22 May 2001 still does not ask for the matter to be withdrawn. Withdrawal is something that usually granted upon a request of an applicant.
12. Since the Applicants have not applied to withdraw the proceedings, I now propose to dismiss them pursuant to s 75(1)(a) as lacking in substance. I consider the proceedings to have lacked substance, at any rate since it became clear to everybody that the greyhounds had been removed and that there was no continuing contravention. The circumstances of this case were not such that there was a reasonable apprehension that a contravention was threatened or likely to commence or be resumed within the foreseeable future.
13. I will reserve the question of costs as requested, but that is not to be taken as an indication that I think that the Applicants are likely to be entitled to costs in the circumstances of this case. I reserve the question of costs because the solicitors have asked that this be done and because Maddock Lonie & Chisholm, solicitors for another party, while agreeing that the application should be dismissed have asked that the Tribunal permit submissions to be made by their client on the matter of costs. Apparently they have advised the Applicants' solicitors on a number of occasions that their client intends to seek costs on the grounds of the application is without merit.
14. It will be helpful if Maddock Lonie & Chisholm would confirm that they act for the Responsible Authority. I recorded them as acting for the Responsible Authority at the time of the hearing on the 7 February 2001 because Ms Heber of that firm had filled out the appearance sheet indicating that she appeared for the Shire of Delatite. However, there is an endorsement on the inside of the cover of the Tribunal's file indicating that Maddock Lonie & Chisholm act, in place of J King & Associates, for the enforcement order applicants. That appears to be an error.
15. If there is to be a contested issue in relation to costs, I believe that it will be necessary to fix a date for a hearing when the parties can be heard in relation to that question. No such hearing will be fixed unless a party asks for that to be done. In that event such party should indicate what costs are being sought (including quantum and basis of assessment) against which other party with a statement of the grounds to be relied upon in support of such application. Any such application should include reference to the fact that this case is otherwise complete and that it is likely that the Tribunal's file would have been put away as a completed matter.
Michael Ward & Anor
Delatite SC & Ors [2001] VCAT 841
Enforcement order application dismissed pursuant to s 75(1)(a) as lacking in substance; question of costs reserved for potential further hearing upon application (Order; Reasons [12], [13], [15]).