//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2009] VCAT 2205
mixed. In P1347/2008, the application was allowed in part for Breaches 1 and 2, and the Tribunal made a substituted enforcement order. Alleged Breaches 3 to 7 were adjourned. In P2026/2008, the application...
The Tribunal approved an agreed solution for the existing septic system and some physical works at the Rye property. The existing system had to be removed and could not be used while the replacement system awaited a permit to use; the order also said the dwelling could not be occupied during that period. The permit was amended to allow a replacement system at a specified alternative location, subject to plans and operating conditions. The Council's application succeeded in part, while the remaining alleged breaches and Mr Fraser's remaining review grounds were left for a later joint hearing. The respondents also had to pay $13,407.50 in further costs. The decision does not say what happened at the later hearing.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,225 words · generated 01/10/2026
The Tribunal dealt with three related proceedings concerning land at 2617 Point Nepean Road, Rye. The central enforcement proceeding, P1347/2008, was brought by Mornington Peninsula Shire Council as responsible authority. Tuscann Enterprises Pty Ltd owned the land, and Elvia and Joe Russo were identified as occupiers. Hugh Fraser participated as an objector. A related permit-review proceeding, P2026/2008, was brought by Elvia Russo. Fraser brought the later review proceeding, P2736/2009.
No linked legislation citations have been extracted yet.
The case was at a further hearing, following earlier orders dated 12 June and 10 August 2009. The Tribunal said that the Council and respondents had reached agreement on most issues. The agreed resolution concerned alleged Breaches 1 and 2, the existing non-complying septic system and a replacement system at an alternative location. Fraser did not object to those parts of the proposed orders. The remaining alleged Breaches 3 to 7 concerned works which the Council proposed to legitimise by issuing a Notice of Decision to Grant a Permit. Fraser disagreed with that outcome and had filed P2736/2009 to review the Council's decision (Reasons [1]-[3]).
The Tribunal accepted the agreed approach in substance, with reformatting and minor variations. It cancelled and substituted the earlier interim enforcement and enforcement orders under s 121 of the Planning and Environment Act 1987. The substituted order required removal of the existing septic system, reduction of the boundary fence to no more than 1.8 metres above natural ground level, and removal of the specified portion of elevated pool decking by 14 December 2009. It also prohibited use of the existing septic system until a permit to use the replacement system at the Alternative Location issued, or a further order was made. The order expressly stated that the respondents could not occupy the dwelling until that permit issued.
In P2026/2008, the Tribunal amended Planning Permit P07/0577 to facilitate a replacement septic tank system. The new permit conditions required amended plans, details of works and finished levels, measures to prevent effluent emerging behind the garage, a reduction in brush-fence height, and removal of specified pool decking. They also required compliance with the cited EPA Code of Practice, a management plan, and installation in accordance with endorsed plans and specified technical reports. The Tribunal allowed that application in part and stated that the proceeding was finalised.
The unresolved disputes were not decided. The Tribunal adjourned the balance of P1347/2008 and P2736/2009 for a joint hearing on 8 February 2010. Fraser withdrew ground 1 of his review application, leaving grounds 2 to 10. The supplied judgment contains no account of what happened at that later hearing.
The Tribunal's reasons are short and directed mainly to implementing the parties' agreed position and organising the outstanding disputes. It considered it appropriate to make orders generally in accordance with the Council's and respondents' proposals after reviewing material filed since the previous hearing and hearing further submissions (Reasons [4]). It made minor variations but said the orders had the same general effect as those proposed.
The order separated the dispute into resolved and unresolved parts. The agreed solution for the septic system and Breaches 1 and 2 could be given effect immediately. The contested issues relating to Breaches 3 to 7, and Fraser's overlapping review grounds, required a further hearing. The Tribunal noted that these remaining issues were largely planning issues and that it was likely a planning member would sit at the next hearing (Reasons [5]). It therefore did not determine whether the Council's proposed permit outcome for those alleged breaches was appropriate.
The costs decision turned on the period being assessed. The Council sought further costs on a full indemnity basis, relying on the respondents' conduct. The Tribunal had previously awarded substantial costs, including some indemnity costs, for an earlier period when it considered the respondents' continuing non-compliance had unreasonably caused additional expense. For the period between the second and third hearings, however, the Tribunal viewed the matter as having returned to a more normal enforcement proceeding. It noted that the respondents had undertaken work to address the septic-system dispute and arrange relocation, despite not strictly complying with earlier orders. Under s 109 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal considered that an award remained warranted, but on a party-party basis (Costs [4]-[5]).
The respondents did not dispute several components, which together amounted to $7,407.50. They disputed the solicitors' fees and sought taxation. The Tribunal preferred to avoid the additional delay and expense of taxation. It reviewed the costs breakdown for part of the period and considered the parties' submissions, then fixed the disputed amount at $6,000 inclusive of GST. Added to the undisputed amount, this produced a total award of $13,407.50, payable by 4 November 2009 (Costs [2]-[7]). The reasons describe this as the Tribunal's assessment of the costs for this phase, not a general formula for other cases.
The Tribunal also addressed the failure to pay an earlier costs order of $40,157.58. It expressed concern and noted the respondents' counsel's indication that payment would be made within seven days (Costs [9]). It declined to interfere with its earlier costs order by imposing penalty interest or another measure. It nevertheless observed that it would not consider it unreasonable for the Council to withhold the Septic Tank Permit until payment, because the enforcement order would then prevent occupation until the replacement system had a permit to use (Costs [10]). That was an observation about a possible response, not a new order directing the Council to withhold the permit.
The supplied reasons do not set out a general doctrinal account of planning enforcement, costs, or wastewater regulation. The decision is primarily an application of cited statutory powers and case-specific directions. It identifies s 121 of the Planning and Environment Act 1987 as the basis for cancelling and substituting the earlier enforcement orders, and refers to s 109 of the Victorian Civil and Administrative Tribunal Act 1998 when assessing costs. It also directs service of the enforcement order under s 140 of the latter Act.
Accordingly, the “before and after” effect that can be established from this text is practical and procedural. Before the order, the earlier enforcement and interim enforcement orders made on 10 August 2009 remained in place, and the parties had unresolved disputes over septic-system works and other alleged breaches. After the order, those earlier orders were cancelled and substituted, Breaches 1 and 2 were finally determined, and the permit-review proceeding P2026/2008 was finalised. The existing septic system was subject to an express prohibition on use, and occupation of the dwelling was expressly barred until a permit to use the replacement system issued.
The legal position on Breaches 3 to 7 did not change through a final determination in this judgment. They remained for later adjudication, alongside Fraser's remaining review grounds. The supplied text gives no result of that later proceeding and does not establish whether a permit was ultimately granted or what conditions were eventually imposed.
The costs decision illustrates a distinction the Tribunal made between two periods in the same litigation. For the earlier period, the Tribunal had awarded some indemnity costs because it considered that the respondents' conduct had unreasonably caused additional costs. For the later period, it selected party-party costs because the circumstances had changed. The source therefore supports a fact-specific explanation for the different treatment, rather than a broad proposition that one costs basis must apply in enforcement proceedings.
At Reasons [4], the Tribunal said it was satisfied that orders generally in accordance with the Council's and respondents' proposals were appropriate. It had reformatted those orders and made minor variations. In plain English, the Tribunal adopted the substance of the settlement or agreed position for the issues that were no longer contested, while retaining control over the form of its orders.
At Reasons [5], the Tribunal explained that Fraser's remaining review application overlapped with the unresolved Breaches 3 to 7. The plain-English point is that the Tribunal considered it more coherent to hear those connected disputes together, rather than decide one in isolation and risk duplicating the hearing of related issues.
At Costs [5], the Tribunal said the matter had reverted to a more “normal” enforcement proceeding and that the respondents' conduct still warranted costs, but on a party-party basis. This passage explains the Tribunal's change from the more severe costs treatment used for an earlier period. It does not suggest that the earlier findings were withdrawn; it says that the later period involved different circumstances.
At Costs [6], the Tribunal said it could fix costs and considered it appropriate to do so. It fixed the disputed solicitors' item at $6,000 inclusive of GST after reviewing the available breakdown and submissions. In practical terms, it decided the amount itself rather than sending the parties through a separate taxation process.
The enforcement order's paragraph 3 states that the respondents could not occupy the dwelling until the Council issued a permit to use the septic system at the Alternative Location. This makes explicit the practical consequence of the restriction in paragraph 2: stopping use of the old system was tied to a restriction on occupation until the new system could lawfully be used under the order's terms.
The judgment is most directly relevant to a procedural situation with several features reflected in its facts: a planning enforcement proceeding with multiple alleged breaches; agreement between the responsible authority and respondents on some remedial measures; a third party's objection to the proposed outcome on other issues; and overlapping enforcement and permit-review proceedings.
Its costs reasoning may be useful as an example where a Tribunal considers different periods of conduct separately. Here, the earlier period involved what the Tribunal described as continuing blatant non-compliance, while the later period involved work to resolve the septic-system problem and arrange relocation. The reasons show that the Tribunal considered that shift when selecting party-party rather than indemnity costs for the later period. They do not establish that the same distinction will determine costs in another case.
The decision also illustrates a situation where the Tribunal fixes a disputed costs amount rather than requiring taxation, after reviewing a costs breakdown and submissions. The reasons explain that the Tribunal preferred to avoid additional delay and expense in this matter. They do not provide a detailed test or a general threshold for when a Tribunal should take that approach.
For compliance professionals, the order shows how permit conditions and enforcement orders can operate together in a specific dispute: the permit amendment prescribed plans, construction and ongoing management requirements, while the enforcement order controlled use of the existing system and occupation pending the replacement system's permit to use. The judgment should not be read as setting a universal rule that occupation must always be prohibited when a septic system is replaced. That consequence came from the express terms of this order.
The supplied material contains no later judgments, appeal history, or citations to subsequent decisions discussing Mornington Peninsula SC v Tuscann Enterprises & Ors. It is therefore not possible to say from this source how later courts or tribunals treated the decision, whether they followed or distinguished it, or whether any part was later reconsidered.
The text also does not identify any earlier case law as authority for the Tribunal's reasoning. Its stated legal references are statutory provisions and the permit and technical materials incorporated into the orders. A later-treatment analysis would require sources beyond the judgment provided here, so no later authorities or developments can be responsibly stated on this record.
The clearest open issue is the outcome of the joint hearing listed for 8 February 2010. The judgment leaves Breaches 3 to 7 and Fraser's remaining review grounds unresolved. It says those matters overlapped and should be heard together, but does not decide whether the relevant works could be permitted or whether the responsible authority's decision should stand.
The supplied text also does not say whether the replacement septic system was installed, whether the Council issued the permit to use, whether the respondents paid the earlier $40,157.58 costs order, or whether the Council withheld any permit pending payment. The Tribunal recorded counsel's indication about payment and made an observation about possible withholding, but the excerpt does not establish what happened afterwards.
Other matters left unanswered include whether Mr Fraser later sought or obtained costs, and whether the expert evidence and amended plans satisfied the detailed permit conditions. The order required further plans, a management plan, compliance with the cited EPA Code of Practice and installation in accordance with specified reports, but the judgment contains no later compliance findings.
The reasons do not develop a general test for choosing indemnity or party-party costs. They explain the result by reference to the respondents' conduct during two different periods in these proceedings. Nor do they set out a general framework for fixing costs instead of requiring taxation. Those points should therefore be treated as an account of the Tribunal's reasoning in this case, not as a complete statement of law.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
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 2205
In P1347/2008, the application was allowed in part for Breaches 1 and 2, and the Tribunal made a substituted enforcement order. Alleged Breaches 3 to 7 were adjourned. In P2026/2008, the application was allowed in part, the responsible authority's decision was set aside, and Permit P07/0577 was amended for the replacement septic system; the proceeding was finalised. P2736/2009 was listed with the remaining enforcement issues for hearing on 8 February 2010. The respondents were ordered jointly and severally to pay the Council $13,407.50 in further costs by 4 November 2009.