Mr Anthony Snooks, Solicitor, Mornington Legal. Evidence was called from Mr B A Whitwam, Planning Compliance Officer. An affidavit by Mr G A Pergyl, Strategic Planner, Natural Systems, was filed with the application.

Application under Section 120 of the Planning and Environment Act 1987.

Works and removal of native vegetation without a planning permit.

Green Wedge Zone 3, Environmental Significance Overlay (Schedules 3 and 17).

The site comprises two lots of approximately 20 hectares.

1. The Mornington Peninsula Shire Council has sought an interim enforcement order in relation to the land at No. 635 Dunns Creek Road, Dromana. It alleges works have been undertaken without a planning permit. It describes various works that it says have occurred, and are continuing, on the land contrary to the provisions of the Mornington Peninsula Planning Scheme, specifically the Environmental Significance Overlay (Schedules 3 and 17) and Clause 52.17 (Native Vegetation). It says exemptions available in the Overlay and Clauses 52.17, 62.02-1 and 62.02-2 do not apply to the works and/or vegetation removal that has occurred.
2. The Applicant seeks an order that works on site cease immediately; that appropriate interim measures be implemented to prevent further sediment runoff and restore floodplain and catchment capacity; and the Council's Consultants be allowed access within seven days to enable a detailed expert report to be undertaken. The last item is not opposed by the Respondent. The balance of the Applicant's case is contested although at the hearing Mr O'Farrell conceded that there is a case to be tried with respect to whether any breaches of the Scheme have occurred.
3. The Council has given an undertaking as to damages in this Application.
4. With the Respondent agreeing there is a case to be tried, the two matters I have focused on are the balance of convenience and urgency.
5. Mr O'Farrell submitted that if the requested orders are made then his client would suffer a series of consequences including costs with sending away contractors, liability associated with breaches of contract, loss of the ability to prepare soils for the upcoming planting season, loss of chance to utilise the forthcoming planting seasons, and the loss of an ability to de-silt and collect water in the dam. He said his client intends continuing with works that do not require a planning permit so there is no utility in making an interim enforcement order. It was noted that channels referred to in the Council's evidence have been top soiled. Mr O'Farrell also submitted the Council had not made out this is an urgent case.
6. I do not accept these submissions. Instead, I accept the submission by Mr Snooks that it would be highly undesirable to allow works and vegetation removal to continue. It is appropriate to make an interim order because it is evident from the Respondent's submission that the Respondent intends to continue with the activities on the land. Although the parties agreed to mediation on 20 July 2010 irreparable damage is likely to be done in the meantime. I am not persuaded that the delays and costs referred to by Mr O'Farrell, that can be remedied and compensated should the Council's case fail, outweigh the loss and damage to the environment.
7. I will make some of the orders as requested by the Council but will allow works within the north-west paddock, outside ESO17, as this does not appear to be contentious. I am not persuaded to make the same exception for works on other parts of the land. Access to the land was agreed between the parties at the hearing in the form I have included in my order.

Works and removal of native vegetation without a planning permit under the provisions of the Environmental Significance Overlay (Schedules 3 and 17) and Clause 52.17 (Native Vegetation) of the Mornington Peninsula Planning Scheme.

WHEREAS THE APPLICANT has given the following undertaking:

If the Tribunal ultimately decides that an enforcement order should not be made, and a Court decides that any person has suffered loss or damage as a result of the making of this Interim Enforcement Order and further decides that I should compensate that person for the loss and damage suffered, I undertake that I will pay the amount assessed by the Court to that person -

1. Until further order, the land owner must not carry out or engage any person to carry out any further works on the land of the type described in Order No. 2. This order excludes the land described as the north-west paddock outside the area of Environmental Significance Overlay (Schedule 17) that is shown hatched on the plan below.
2. The following works must immediately cease: trenching and backfilling; changing the topography or hydrology of the land; filling or excavating of the land including modifying any dam, swamp, streamline or drainage line; vegetation removal, lopping or destruction including native grasses and dead trees; earthworks that change the rate of flow or discharge point of water across the property boundary; removal of top soil.
3. Within seven (7) days of the date of this order, the land owner must allow access to the land by the Mornington Peninsula Shire Council Planning Compliance Officers and the Shire's Consultants for the purpose of preparing a detailed expert report in respect of the works undertaken on the land and to allow appropriate and reasonable investigations in particular photographs; minor manual excavation to assess the extent of works; and samples. The Council must give 48 hours prior written notice of its intended time and date of visit.

North-West Paddock Referred to in Order No. 1 Shown Hatched