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[2001] VCAT 2255
plaintiff. By consent, the respondents were ordered to complete the specified landscaping works within six months and pay the Responsible Authority’s agreed costs of $3,000 within 28 days.
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The Council and the landowners agreed on orders to address alleged planning works at the property. The Tribunal formalised their agreement: landscaping works according to a named plan were to be completed within six months, and $3,000 in agreed costs paid within 28 days. Although the draft also proposed withdrawing the proceedings, the Tribunal considered withdrawal unnecessary or inappropriate once it was making an enforcement order by consent. The short decision does not resolve disputed facts or explain a wider legal test.
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1,676 words · generated 01/10/2026
In Mornington Peninsula SC v G&H Nicholson [2001] VCAT 2255, the Mornington Peninsula Shire Council applied to the Victorian Civil and Administrative Tribunal for an enforcement order concerning land at 198 Franklin Road, Portsea. The respondents, Graeme Cowper Nicholson and Helen Nicholson, were identified as the owners of the land.
The alleged contravention was “removal of vegetation from, and placement of fill upon, land without planning permission required under the Planning Scheme.” The judgment describes the land as being in Low Density Residential and Residential 1 Zones, and subject to Design and Development Overlay Schedules 4 and 5 and Vegetation Protection Overlay Schedule 1. Those details identify the planning controls relevant to the property as recorded in this decision. The decision does not explain how each control applied to the alleged works.
The matter was heard in Melbourne on 26 October 2001 before Senior Member Russell Byard. The Council and the respondents agreed on proposed orders and presented draft consent orders signed by their solicitors. The respondents' solicitor said that the works mentioned in the proposed orders had already been completed. That is recorded as the solicitor's submission, not as a finding following evidence or a contested hearing.
The Tribunal ordered the respondents to carry out landscaping works in accordance with a schedule on a survey plan marked Attachment A, dated 26 September 2001. The works were to be completed within six months of the order. It also ordered payment of the Council's agreed costs of $3,000 within 28 days. The Tribunal made those orders by consent.
The draft orders also referred to withdrawal of the proceedings. The Tribunal did not include that term. It explained that withdrawal was not necessary or appropriate in circumstances where it was making an enforcement order by consent. The orders were made on 14 November 2001.
The judgment gives a short procedural explanation rather than a full analysis of planning law. Its central point is that the parties had agreed to the substantive orders. The Tribunal said the Council and respondents had “agreed to consent to orders in this case” and made orders “otherwise in accordance with the draft consent orders with a minor addition to wording that I consider appropriate.”
That means the decision should be read as recording and formalising an agreement. It does not contain a contested assessment of whether vegetation was removed, whether fill was placed, whether planning permission was legally required for the particular works, or whether the respondents had committed a contravention. The judgment labels the conduct as an “alleged contravention” and does not state that the Tribunal made findings on those matters.
The orders set out practical requirements: the identified landscaping works, a six-month completion period, and payment of the agreed costs within 28 days. The reference to the survey plan ties the works to a particular document, Attachment A. The judgment itself does not reproduce that plan or its schedule, so the details of the landscaping cannot be established from the text provided.
The Tribunal separately addressed the proposed withdrawal. The draft consent orders included a reference to withdrawing the proceedings, but Senior Member Byard considered that unnecessary or inappropriate “where an enforcement order is to be made by consent.” The Tribunal therefore made operative orders rather than recording a withdrawal. This is a case-specific procedural explanation, not a stated general rule about every consent resolution.
The decision does not identify a broader statutory test, cite legislation by section, or refer to earlier judgments. It would therefore go beyond the source to attribute a developed legal principle to the Tribunal.
This decision does not describe the state of planning law before it was made, and it does not announce a change in the law. The judgment records that planning permission was said to be required under the Mornington Peninsula Planning Scheme for the alleged vegetation removal and placement of fill. It does not identify a provision number or explain the source or scope of that requirement.
The most that can be said about the “before” position from this text is that the Council had brought an enforcement order application concerning alleged works on land subject to the listed zones and overlays. The parties then agreed on orders. The judgment does not set out the Council's evidence, the respondents' substantive position on the alleged contravention, or any competing interpretation of the Planning Scheme.
The “after” position established by the decision is narrower and concrete: there was an order requiring specified landscaping works by a stated deadline and payment of agreed costs by another stated deadline. The decision does not say that the Tribunal found the earlier works unlawful, nor does it describe any broader effect on the parties' legal rights beyond the orders themselves.
No later cases or legal materials are included in the source provided. Accordingly, this text cannot establish whether later courts or tribunals followed, distinguished, or otherwise treated the decision. It is safer to treat it as a short consent-order decision unless other sources establish a wider precedent history.
The decision has no numbered paragraphs. The references below are therefore to its identified sections and numbered orders, rather than paragraph numbers.
“ALLEGED CONTRAVENTION”: “Removal of vegetation from, and placement of fill upon, land without planning permission required under the Planning Scheme.”
Plain English: The Council's application concerned those alleged activities and the asserted need for planning permission. The word “alleged” matters: the decision does not record a contested finding that the conduct occurred or that it breached the scheme.
Remarks: “The Applicant/Responsible Authority and the Respondents have agreed to consent to orders in this case.”
Plain English: The parties agreed on the outcome recorded in the orders. The Tribunal was not resolving a fully contested dispute in the reasons reproduced here.
Remarks: “Ms King claims that the works referred to in the consent orders have already been carried out.”
Plain English: The respondents' solicitor told the Tribunal the works had already been done. The judgment records that statement but does not say the Tribunal independently verified it.
Order 1: landscaping works were to be carried out in accordance with the schedule on Attachment A, “such works to be completed within six months of the date of this order.”
Plain English: The respondents were required by the order to complete the plan-linked works within six months. The order's detail depends on Attachment A, which is not reproduced in the supplied text.
Order 2: “The Respondents are to pay the Responsible Authority's costs agreed at $3,000.00 within 28 days of the date of this order.”
Plain English: The Tribunal recorded a costs amount agreed by the parties and imposed a 28-day payment period.
Remarks: withdrawal was not “necessary or appropriate” where an enforcement order was being made by consent.
Plain English: The Tribunal did not adopt the draft term withdrawing the proceedings. It made the agreed enforcement orders instead.
The decision's facts concern an enforcement order application about alleged vegetation removal and fill placement without planning permission on land subject to specified planning controls. The application ended in consent orders requiring landscaping and payment of agreed costs. That is the specific factual and procedural setting shown by the judgment.
The decision may be relevant as an example of a Tribunal recording agreed enforcement orders and declining to include a proposed withdrawal term where it is making an order by consent. Its usefulness for another matter depends on the actual wording of the orders, the governing planning scheme, the procedural setting, and any later legal materials. Those matters are not analysed in this decision.
The judgment does not establish that every vegetation removal or placement of fill requires permission, or that similar landscaping terms are appropriate in other cases. It records the alleged permission requirement in this application without setting out the relevant scheme provisions or a general test. Nor does it establish a general rule that proceedings cannot be withdrawn after an agreement. Its stated explanation is limited to the circumstances before the Tribunal, where an enforcement order was being made by consent.
The text provided contains no later treatment of this decision and cites no other cases. It therefore does not support a claim that a later court or tribunal followed, applied, distinguished, approved, or questioned it.
The judgment itself is also not a detailed precedent discussion: there is no list of authorities, no ratio stated in the reasons, and no analysis of a legal test. Its direct value from the source is as a record of the consent orders and the Tribunal's procedural explanation for not including withdrawal. Any account of later treatment would require sources beyond the judgment supplied here.
The judgment leaves several matters unanswered because it is short and consent-based. It does not reproduce Attachment A, so the precise landscaping schedule cannot be described from this text. It does not identify the specific Planning Scheme provisions said to require permission, or explain how the cited zones and overlays applied to each alleged activity.
It also does not set out evidence about the alleged vegetation removal or fill placement, the respondents' substantive response, or whether any permission had been sought or granted. The statement that the landscaping works had already been carried out is attributed to the respondents' solicitor; the judgment does not say whether the Tribunal checked completion.
Finally, the decision gives no general legal test for making an enforcement order by consent and no subsequent case history. Those limits are important: the order's deadlines and costs amount are clear, but the text does not support broader conclusions about planning permission requirements or the outcome of a contested enforcement application.
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The Applicant/Responsible Authority and the Respondents have agreed to consent to orders in this case. In fact, Ms King claims that the works referred to in the consent orders have already been carried out. Minutes of draft consent orders, signed by the solicitors on behalf of each of these parties were presented. They include reference to withdrawal of the proceedings which I do not think is necessary or appropriate in these circumstance where an enforcement order is to be made by consent. I make the above orders by consent otherwise in accordance with the draft consent orders with a minor addition to wording that I consider appropriate.
Mornington Peninsula SC
G&H Nicholson [2001] VCAT 2255
By consent, the respondents were ordered to complete the specified landscaping works within six months and pay the Responsible Authority’s agreed costs of $3,000 within 28 days.