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[2009] VCAT 2165
mixed. In P1347/2008, the enforcement application was allowed in part and an enforcement order was made for Breaches 1 and 2; Breaches 3 to 7 were adjourned to 8 February 2010. In P2026/2008, the application...
The Tribunal approved an agreed solution for the septic system and some related works, including a replacement system at a different location subject to detailed permit conditions. It closed the part of the enforcement case concerning Breaches 1 and 2 and finalised the associated permit-review proceeding. Other alleged breaches and Mr Fraser's separate review application remained to be heard together in February 2010. The respondents also had to pay $13,407.50 in further costs. The Tribunal's comment that the Shire could withhold the septic permit until earlier costs were paid was an observation, not a direction in the order.
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2,376 words · generated 01/10/2026
The Tribunal dealt with three connected proceedings concerning land at 2617 Point Nepean Road, Rye: an enforcement proceeding brought by Mornington Peninsula Shire Council, a permit-review proceeding brought by Elvia Russo, and a separate review proceeding brought by Hugh Fraser. The hearing took place on 19 October 2009 before Deputy President Mark Dwyer and Member Alan Chuck. The order was made on 21 October 2009.
No linked legislation citations have been extracted yet.
The underlying enforcement application alleged several kinds of non-compliance. The enforcement order describes a swimming pool, spa and decking on the northern part of the land, within a front-setback area where the permit and endorsed plans required septic tanks and effluent lines. It also refers to a fence outside the title boundary and missing details about roof material and colour. The order identifies possible breaches of conditions in Permit P07/0577 and clauses 42.01-2, 43.02 (schedule 2) and 61.05 of the Mornington Peninsula Planning Scheme. The supplied reasons do not reproduce the earlier decisions or fully set out the facts behind each numbered breach.
At the October hearing, the Council and the respondents had reached agreement on most issues concerning Breaches 1 and 2. The agreed approach was to remove the existing septic system and install a replacement in an alternative location. The orders also dealt with reducing the height of the boundary fence and removing a specified part of the pool deck. Mr Fraser did not object to these orders. The Tribunal considered the material and submissions and made orders generally in line with the parties' proposed position, with some reformatting and minor variations (Reasons [3]–[4]).
The amended permit contains detailed controls for the replacement septic system. Before construction, amended plans had to be submitted for Council approval. Those plans were to address cuts, retaining works and finished ground levels, measures to prevent effluent emerging behind the garage, a brush fence no higher than 1.8 metres above natural ground level, and removal of the relevant pool-deck section. The system had to comply with the cited EPA Code of Practice and have a management plan. The order also specified that installation was to occur within three months of obtaining a Septic Tank Permit to install the system, in accordance with the endorsed plans and identified technical reports.
The order required the respondents to stop using the existing septic system until a Septic Tank Permit to Use the alternative-location system was issued, or until further order. It stated that the consequence was that the respondents could not occupy the dwelling until that permit was issued. Separately, Breaches 3 to 7 were not determined. Those issues were adjourned, along with Mr Fraser's review proceeding, to a joint hearing listed for 8 February 2010.
The Tribunal also addressed costs. The respondents were ordered jointly and severally to pay a further $13,407.50 to the Council by 4 November 2009. The order described these as costs incurred from the hearing on 3 August 2009 up to and including the hearing on 19 October 2009. Mr Fraser's costs were reserved.
The Tribunal's reasoning is principally procedural and case-specific. It said the Council and the respondents had reached a consensus on most issues and that this enabled orders to resolve Breaches 1 and 2 and the related permit proceeding. It was satisfied, on the filed material and submissions, that orders generally in the proposed form were appropriate (Reasons [3]–[4]). The outcome was not a determination after a contested merits hearing on every alleged breach. The Tribunal expressly recorded the consent position and Mr Fraser's lack of objection to the relevant orders.
The Tribunal used the orders to link the enforcement response with the permit pathway for the replacement septic system. The existing system had to be removed, and its use had to cease pending a permit to use the replacement system at the alternative location. The amended permit set out pre-construction requirements, technical standards, a management plan and an installation timeframe. The result was a conditional arrangement: the permit amendment facilitated a replacement system, while the enforcement order prevented continued use of the existing system and occupation of the dwelling until the specified permit to use was issued.
The remaining dispute was managed separately. Mr Fraser disagreed with the proposed outcome concerning Breaches 3 to 7 and had made a review application. The Tribunal recorded that his remaining grounds overlapped with those breaches. The parties agreed that the matters should be heard together, so the Tribunal adjourned the unresolved enforcement allegations and listed the review proceeding for the same hearing date (Reasons [3], [5]). It also directed the respondents to file any statement of grounds in response and limited the Council's response to information not already filed in the enforcement proceeding.
On costs, the Tribunal considered the parties' positions and the respondents' conduct in different periods. It referred to its earlier costs decision, where it had awarded substantial costs, including a portion on an indemnity basis, for an earlier period involving continuing non-compliance. For the period between the second and third hearings, however, the Tribunal considered that the matter had returned to a more ordinary enforcement proceeding: the respondents had undertaken work to address the septic-system issue and its relocation, although they had not strictly complied with earlier orders (Costs [4]–[5]). Having regard to s 109 of the Victorian Civil and Administrative Tribunal Act 1998, it considered an award appropriate but assessed the later-period costs on a party-party basis.
The respondents accepted several costs items, which totalled $7,407.50. They disputed the Council's solicitors' fees. Rather than require taxation, the Tribunal reviewed the available costs breakdown and submissions and fixed that disputed item at $6,000 inclusive of GST. Added to the undisputed amount, this produced the total award of $13,407.50 (Costs [2]–[7]). The reasons explain the Tribunal's approach in this case, not a general rule that disputed VCAT costs must be fixed rather than taxed.
The decision does not purport to change or comprehensively restate the law. The supplied text contains no discussion of precedent or earlier judgments as legal authorities. Its main effect is to apply the statutory and procedural framework to the parties' agreed position and the unresolved disputes in these proceedings.
For enforcement, the order expressly refers to s 121 of the Planning and Environment Act 1987 as the basis for cancelling and substituting the earlier interim and enforcement orders. The new enforcement order set requirements for removal, alteration and cessation of use. The order also directs service under s 140 of the Victorian Civil and Administrative Tribunal Act 1998. The judgment does not analyse the scope or limits of either provision, so it would be unsafe to draw broader propositions about those sections from this decision alone.
For costs, the Tribunal expressly says it had regard to s 109 of the Victorian Civil and Administrative Tribunal Act 1998. It distinguishes the respondents' conduct in the later period from the conduct that had led to the earlier costs order. The practical result was a party-party award for the later period and a fixed amount for the disputed item. The reasons do not describe a change in the governing costs law; they explain the Tribunal's exercise of its costs power on the circumstances presented.
The permit amendment is similarly specific. It revised Permit P07/0577 for this land and this replacement septic system. It prescribed the plans, technical material, management arrangements and installation conditions that applied to the amended permit. It does not establish a general entitlement to relocate septic systems or a general standard for such applications.
One point needs particular care. In Costs [10], the Tribunal said it would not consider it unreasonable for the Council to withhold the Septic Tank Permit until the respondents paid the earlier costs. The Tribunal did not order the Council to withhold that permit. The operative orders set out the payment obligation and the conditions concerning the septic system separately. The observation should not be conflated with an operative direction or treated as a general legal rule.
In Reasons [4], the Tribunal said it was satisfied that it was appropriate to make orders generally in accordance with those proposed by the Council and the respondents. In plain English, the Tribunal accepted the negotiated resolution of the identified issues, after considering the material and submissions. It also recorded that the result finally determined Breaches 1 and 2 and ended P2026/2008.
In Reasons [5], the Tribunal explained that Mr Fraser's review application overlapped with the unresolved Breaches 3 to 7. The plain-English effect is that the remaining issues were not decided at this hearing: they were grouped together for a later hearing. The order lists that hearing for 8 February 2010.
In Costs [5], the Tribunal described the matter as having reverted to more of a “normal” enforcement proceeding during the period between the second and third hearings. It relied on the respondents' efforts to address the septic system, while noting that they had not strictly complied with previous orders. In practical terms, that changed the basis on which the Tribunal assessed the later-period costs: party-party costs were ordered rather than a further indemnity award for that period.
In Costs [6], the Tribunal said it was fair and reasonable to fix the disputed item at $6,000 inclusive of GST. In plain English, it chose an amount after reviewing the available breakdown and submissions, rather than sending that item for taxation. The overall further costs order was $13,407.50, payable by 4 November 2009.
In Costs [10], the Tribunal said it would not itself interfere with its earlier costs order, but would not consider it unreasonable for the Council to withhold the Septic Tank Permit until costs were paid. This was a comment about what the Council might do, not a direct order by the Tribunal to withhold the permit.
The decision is most relevant as a procedural example where a planning enforcement proceeding, a permit-review application and a separate review proceeding concern related works on the same land. It illustrates the Tribunal's handling of a case where some alleged breaches can be resolved by agreement and other allegations remain contested.
The facts that shaped this outcome included an agreed solution for the existing septic system; a proposed replacement system at an alternative location; Mr Fraser's non-objection to the orders addressing Breaches 1 and 2; and the overlap between his remaining review grounds and Breaches 3 to 7. The Tribunal used that overlap to list the remaining matters together. A matter with no consent position, no related review application, or no overlap among the remaining issues would not necessarily follow the same procedural course.
The costs discussion may be relevant where the Tribunal is asked to assess costs across distinct periods and the parties' conduct has changed over time. Here, the Tribunal differentiated an earlier period, which had been addressed in an earlier costs decision, from a later period in which the respondents had undertaken work towards resolving the septic-system issue. That factual distinction supported a party-party award for the later period. The reasons do not establish that the same costs outcome follows whenever a party begins work to remedy an alleged breach.
The permit conditions may be relevant for understanding the particular constraints placed on this replacement system. They are not, without more, a general precedent for the technical requirements applicable to other sites or wastewater systems. The order ties those conditions to specified plans and reports and to this property.
The supplied judgment contains no later decisions, subsequent judicial treatment or case citations. The precedent-relationships field is therefore empty. No conclusion about whether later courts or tribunals followed, distinguished, applied or questioned this decision can be drawn from the supplied material.
The reasons do refer to earlier orders made in the same proceedings on 12 June 2009 and 10 August 2009, and to an earlier costs decision. But the text provided does not reproduce those earlier reasons in full. It says that the earlier decision awarded substantial costs, including part on an indemnity basis, for an earlier period. That is procedural history within the same litigation, not evidence of later treatment of this judgment.
The decision is a VCAT determination by a Deputy President and Member, rather than a judgment of a court identified in the supplied text. Its most clearly supported significance here is therefore the orders and reasoning in these particular proceedings. Any account of later treatment would require additional legal sources not included in the materials provided.
The main open issue in the decision itself is the merits of Breaches 3 to 7 and Mr Fraser's remaining review grounds. The Tribunal adjourned those matters to a joint hearing in February 2010 and did not decide whether the relevant works or use should be permitted or whether the alleged breaches were established.
The reasons do not explain the detailed factual basis of each breach, the full contents of the technical reports, or the earlier orders made in June and August 2009. The operative orders identify particular required works and conditions, but the supplied text is insufficient to reconstruct the entire history or assess every technical dispute.
The decision also leaves open the outcome of the later hearing and the final treatment of Mr Fraser's costs. The Tribunal reserved his costs and expressly made no observation about the likelihood of recovery (Costs [8]). It likewise did not make a new order about the respondents' unpaid earlier costs of $40,157.58. It noted counsel's indication that payment would occur within seven days and said it did not intend to interfere with the earlier order (Costs [9]–[10]).
Finally, the Council's possible withholding of the Septic Tank Permit was not resolved by an operative order in these reasons. The Tribunal's comment is limited to saying that such withholding would not be unreasonable in the circumstances it described. The supplied text does not establish what the Council subsequently did or how any later dispute about the permit was determined.
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Further Amended Plans - Septic Tank System 'Alternative Location'
(1) details of any site cuts and subsequent retaining walls and/or batters required to allow the pressure dosed absorption bed to be installed along the contour of the land to a maximum depth of 600mm at the rear of the property, including elevations of any proposed retaining wall and trenches and finished ground levels, including elevations of the proposed retaining wall and trenches and finished ground levels;
(2) details regarding how any effluent will be prevented from emerging through the retaining wall behind the garage;
(3) reduction in the height of the brush fence to be not greater than 1.8 metres above natural ground level; and
(4) removal of any part of the swimming pool deck which sits 800mm or greater above natural ground level within 7.5m from the Point Nepean Road frontage of the land. 2. The septic tank system and amended plans must comply with the EPA Code of Practice - Onsite Wastewater Management (EPA Publication 891.2, December 2008) as amended from time to time. 3. Prior to the construction of the septic tank system in the Alternative Location, a management plan must be submitted to the satisfaction of the responsible authority. The management plan must detail how the system will be managed on-site and into the future and should include information about the indexing valve, mechanical treatment plant servicing, and effluent sampling frequency. Once installed, the septic tank system must be maintained to the satisfaction of the responsible authority in accordance with the management plan. 4. The septic tank system (including the pressure dosed absorption beds) must be installed in the Alternative Location in accordance with the endorsed plans within three (3) months of obtaining a Septic Tank Permit to install the system. The septic tank system and its installation must also be to the satisfaction of the responsible authority and in accordance with the reports entitled On-Site Management of Domestic Wastewater at 2617 Point Nepean Road, Rye dated 17 September 2009 prepared by Robert van de Graaff, Geotechnical Investigation and LCA for On-Site Wastewater Management dated 27 August 2009 prepared by Frank Tostovrsnik, and the Statement of Evidence in VCAT proceedings P1347/2008 and P2026/2008 dated 5 October 2009 prepared by Glen D Marriott.
(c) Former conditions 2 to 14 (inclusive) in the permit are re-numbered as Conditions 6 to 18 (inclusive) accordingly.
6 For the avoidance of doubt, proceeding P2026/2008 is now finalised.
Ms Juliet Forsyth of counsel, instructed by Ms Kate Henderson of Deacons lawyers.
For Tuscann Enterprises Pty Ltd (ACN 101 782 012), Elvia Russo & Joe Russo
Mr Andrew Walker of counsel, instructed by Jim McCarthy, lawyers.
Buildings and works comprising swimming pool, spa and decking on northern portion of land (front setback) in an area where Permit P07/0577 and endorsed plans require septic tanks and effluent lines for the waste water treatment system.
Building of fence outside title boundary, and failure to provide details of roof material and colour to satisfaction of responsible authority.
Breaches arise under conditions in Permit P07/0577, and under cl 42.01-2, cl 43.02 (schedule 2) and cl 61.05 of the Mornington Peninsula Planning Scheme.
Mornington Peninsula SC
Tuscann Enterprises & Ors [2009] VCAT 2165
In P1347/2008, the enforcement application was allowed in part and an enforcement order was made for Breaches 1 and 2; Breaches 3 to 7 were adjourned to 8 February 2010. In P2026/2008, the application was allowed in part, the responsible authority's decision was set aside, and Permit P07/0577 was amended to facilitate a replacement septic system at an alternative location; that proceeding was finalised. P2736/2009 was listed for hearing with the remaining enforcement issues. The respondents were ordered jointly and severally to pay $13,407.50 in further costs by 4 November 2009.