1. The application for enforcement order is listed for a compulsory conference and a hearing as detailed below.

If there is any change to these details, the Tribunal will notify you.

VCAT Bundoora, 1-3 Janefield Drive, BUNDOORA VIC 3083

VCAT Melbourne, 308 La Trobe Street, MELBOURNE VIC 3000

1. By 15 January 2026, the responsible authority must give the information required by the Tribunal's Practice Notice PNPE2 - Information from Decision Makers (PNPE2) to the Tribunal, which relates to this proceeding. The responsible authority must give a copy of the completed or amended table of Practice Note PNPE2 to the applicant.
2. The attachments do not need to be given to the applicant.
3. By 15 January 2026 the responsible authority must give the applicant and the respondent a list of and copies of all documents approved or endorsed under conditions 1, 4 and 20 of Permit PLP145/23.03 and all documents submitted for approval under those permit conditions with a notation as to the date on which each document was submitted.

1. All parties must attend the compulsory conference either in person or by a representative who has permission to settle the proceeding on their behalf.

(Note: See more information in Appendix A of this order).

1. Any document to be relied on for the compulsory conference that is provided to the Tribunal must be clearly marked "For Compulsory Conference".

1. No later than 20 business days before the hearing, the applicant must provide the Tribunal and all parties with:
   • a list of all of the lay and expert witnesses that they intend to call or make available to give evidence at the hearing; and
   • a witness statement from each lay or expert witness that they intend to rely on at the hearing, not yet provided. All expert witness statements must be prepared in accordance with Practice Note - PNVCAT2 Expert Evidence.
2. No later than 15 business days before the hearing, the respondent and any other party must provide the Tribunal and all parties with:
   • a list of all of the lay and expert witnesses that they intend to call or make available to give evidence at the hearing; and
   • a witness statement from each lay or expert witness that they intend to rely on at the hearing, not yet provided. All expert witness statements must be prepared in accordance with Practice Note - PNVCAT2 Expert Evidence.
3. No later than 10 business days before the hearing, the applicant must provide an electronic copy of their submissions and associated material (such as supporting documentation and case law) to the Tribunal and all parties. The copy for the Tribunal must be sent to admin@courts.vic.gov.au
4. No later than 5 business days before the hearing, all other parties must provide an electronic copy of their submissions and associated material (such as supporting documentation and case law) to the Tribunal and all parties. The copy for the Tribunal must be sent to admin@courts.vic.gov.au

1. Any request for procedural orders from the Tribunal must be made in writing and a copy must be given to all parties.

1. The applicant has sought an interim enforcement order under section 120 of the Planning and Environment Act 1987 (Vic) ('PE Act') as well as an application for an enforcement order under section 114 of the PE Act.
2. The applicant alleges that conditions 20, 25, and 26 of planning permit PLP145/23 ('Permit') have been breached in respect of two trees. One tree is tree 33 on the respondent's land, the other is a tree in the Council road reserve referred to as tree 25.
3. The Permit was issued at the direction of the Tribunal following a hearing[2]. The hearing considered an application under section 82 of the PE Act to review the decision of the Council to grant a permit which allowed a second dwelling to be constructed to the rear of the subject site.
4. Suzie Saana represented the applicant in that proceeding, Kitt Hunter Campbell. She called Mr Howell, to give evidence who had also prepared an Arboricultural Impact Report. The decision records that the applicant was largely not opposed to the proposed dwelling and associated works but is concerned about the effect of the works on a large tree on her neighbouring property and on a tree within the nature strip.
5. The relevant permit conditions are:

1. Before works start, a Tree Protection Management Plan must be prepared by an arborist with a minimum of AQF Level in Arboriculture or equivalent. The Plan must be in accordance with the Australian Standard for the Protection of Trees on Development Sites (AS4970-2009), and provide the following:

(a) A plan showing the Tree Protection Zones (TPZ) and Structural Root Zones (SRZ) of Trees 25 and 33 overlayed with the proposed design.

(b) The total calculated encroachment of all buildings and works (including utility services) to the TPZ and SRZ of the trees retained on adjoining land.

(c) That all construction activity, utility or excavation works, including the installation of fence post footings, where within greater than 10% of the TPZ of any of the retained trees must be under the supervision the Project Arborist and must be tree sensitive and will need to be dug by hand or by hydro-excavation to minimise root damage and loss of any major roots that are greater than 25-30mm in diameter. Any root pruning within greater than 10% of the TPZ area of any retained trees must be approved by and undertaken by the Project Arborist and all roots must be cleanly pruned with sterilised, sharp pruning tools. There must be no major (greater than 25-30mm in diameter) root pruning within the SRZ of any retained tree.

(d) All tree protection measures (including details of any fencing or ground protection treatment) to be undertaken during the construction phase.

The Tree Protection Management Plan must be to satisfaction of Responsible Authority and prepared in accordance with AS 4970-2009 Protection of Trees on Development Sites.

1. During the course of construction, any person undertaking works on the subject site must comply with the tree protection measures outlined in the endorsed TPMP.

1. If required by the TPMP, any tree protection fencing and ground protection treatment must be erected prior to the commencement of works and maintained until the completion of the development to the satisfaction of the Responsible Authority. Such fencing and ground protection works must be maintained until the development is completed to the satisfaction of the Responsible Authority.
2. Unless otherwise approved by the Responsible Authority, during the course of construction, the area within any TPZ as shown on the endorsed TPMP must not be used for:

(a) vehicular or pedestrian access.

(b) trenching or soil excavation.

(c) storage or dumping of materials, tools, equipment or waste.

(d) construction of entry and exit pits for underground services.

(e) mechanical excavation including trenching.

(f) cultivating.

(g) parking vehicles and plant.

(h) refuelling.

(i) washdown and cleaning of equipment.

(j) soil level changes.

[emphasis added]

1. The respondent has allowed some removal of trees on the land, and a dispute has arisen as to whether this is in breach of the Permit. I am not required to and have not reached a view as to whether there has been a breach of the Permit. That will be a matter to be considered at the hearing if the matter is not settled at the scheduled compulsory conference.
2. I have concluded that it is not appropriate to make an interim enforcement order on the basis of the material available to me on the day of the hearing.
3. The matter has been listed for an early compulsory conference at times convenient to the parties.

1. There was considerable discussion at the hearing about the status of the Tree Protection Management Plan ('TPMP'). The applicant said she did not have a copy of any TPMP.
2. The respondent says that one was provided to the Council in May 2025 but could not locate a response to the provision of the TPMP.
3. I was unable to ascertain whether the Council accepts or denies receipt of the TPMP for its approval. It says it has a copy provided in November 2025 and that it has not approved it and that it has questions for the respondent's arborist. I was not provided with information about what those questions were, nor the plan itself. This information did not appear to have been previously provided to the respondent. The Council says that the TPMP has not been approved or endorsed.
4. I was told that plans had been endorsed under the Permit however no copy was provided to me. The Council did not provide the information required by the Tribunal's orders which required it to comply with Practice Note - PNPE2 - Information for Decision Makers for this proceeding. It filed the PNPE2 table from the proceeding before the Tribunal which resulted in the Permit issuing. I have ordered it to file new or amended material in the enforcement order proceeding with other documents which I anticipate will assist in ensuring all parties are prepared for the compulsory conference.
5. Having identified the material filed and the material which had not been filed, the parties each indicated that they wished the matter to be heard in the time allotted by the Tribunal.

1. Section 120(3) of the PE Act sets out the matters the Tribunal is required to take into account:

120 Interim enforcement orders

...

(3) Before making an interim enforcement order, the Tribunal must consider -

(a) what the effect of not making the interim enforcement order would be; and

(b) whether the applicant should give any undertaking as to damages; and

(c) whether it should hear any other person before the interim enforcement order is made.

1. The orders the Tribunal can make in an application for an interim enforcement order are set out in section 120(4) as follows:

(4) After complying with sub-section (3), the Tribunal may make an interim enforcement order directing any person against whom the order is made -

(a) to stop the use or development immediately or within the period specified in the order; or

(b) not to start the use or development; or

(c) to do specified things to ensure compliance with this Act or a planning scheme, permit condition or agreement under section 173.

1. The making of an interim enforcement order is analogous to consideration of a mandatory injunction by the Courts and decisions of this Tribunal have adopted the considerations relevant to those decisions in interim enforcement proceedings. The Tribunal will consider whether there is a serious issue to be tried (including whether the applicant has made out a prima facie case that the relevant provision has been breached). It is also necessary, and consistent with section 120(3)(a) of the PE Act to consider where the balance of convenience lies and the effect of making or not making the order.[3]
2. In Stonnington v Blue Emporium Pty Ltd[4] the Tribunal said that it was appropriate to take whichever course carries the lower risk of injustice. This must be determined on the basis of the material available to the Tribunal at the time of hearing the interim enforcement order.

1. The applicant appeared on her own behalf.[5] She foreshadowed calling evidence from her partner who was present at the hearing but ultimately did not do so. In any event, the basic factual matters upon which she relied on were not disputed by the other parties.
2. She is the neighbour of the site at 36 Affleck Street, Wandong. The Permit was granted at the direction of the Tribunal following a hearing in which she appeared for her partner. The Tribunal's decision[6] to grant a permit considers the impact of the construction of the proposed second dwelling on two trees referred to as trees 25 and tree 33. The Tribunal required the imposition of conditions on the Permit which sought to address the impact on those trees.
3. She says that on occasions between 11 and 13 December 2025, the respondent's arborist attended the property and removed some trees. She says that this occurred before the erection of any fencing or tree protection zones around the trees identified in the previous Tribunal decision as tree 25 and tree 33. She also says that the fencing later installed does not comply with the relevant Australian standard as required by the conditions.
4. She says that she has observed vehicles parking and moving within what should have been the tree protection zones. She acknowledges some fencing was installed after this but queries whether it is in accordance with the permit requirements.
5. She also says that she has observed water near the trees and is concerned that there has been irreversible damage done or will occur to the trees although she said that she did not know if this was the case. She indicated she had spoken to a lawyer prior to lodging the application but had not received advice from an arborist on this issue.
6. She acknowledges that the Council attended the property and says that she considers that the tree protection zone should extend over the Council owned nature strip and should exclude activity in that area. She acknowledges that the Council has indicated that she can ring them if anyone parks in that area and someone will attend.
7. She says that her understanding is that condition 20 of the Permit requires the Tree Protection Management Plan to be in place prior to any works commencing on the land and that she considers this should have occurred prior to removal of the smaller trees whether or not they require a permit for removal.
8. She says that the major reason for the application is her uncertainty as to what will happen next and given that the trees were not protected and construction could start any time without proper protection of the trees. She is concerned that the damage to the trees may be irreversible.
9. Neither the applicant nor any other party provided any detailed submissions on this issue of whether condition 20 was required to be complied with before the work done on the land commenced. The applicant took me to the definition of 'works' in section 3 of the PE Act in the course of her submissions which was agreed to be:

"works" includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil;

1. The applicant says that this means that the conditions and in particular condition 20 was required to be satisfied before the work done in December commenced.
2. At the conclusion of the Council's case, she agreed that she would be satisfied with an interim enforcement order which required that before further works commence, a Tree Protection Management Plan must be approved in accordance with condition 20 of the Permit and the works must be undertaken in accordance with the approved Tree Protection Management Plan.[7]
3. She declined to give an undertaking as to damages.

1. The Council says that the work undertaken to date did not require a permit and that there is no breach of the Permit. It also says that there is no requirement to fence the Council owned nature strip under any Permit. The Tribunal's decision does not appear to record any objection by the Council to the erection of fencing on its land at the time and I was not told what the basis of any such objection was.
2. The Council says that they have received a complaint from the applicant and that the enforcement team have investigated the complaint and conducted site inspections.
3. While the Council's position appeared to change during the hearing, at the conclusion of the hearing the Council confirmed that its position was that an interim enforcement order should not be made. If the Tribunal did not agree with that proposition, it favoured an interim enforcement order to the effect proposed by the Council as set out in paragraph 29.
4. The Council called Mr Clark, a Council officer who gave relevant evidence that:
   1. he did not believe works had commenced under the Permit;
   2. he was unaware of whether a Tree Protection Management Plan had been endorsed by the Council, but he took a copy of a document he had received which he thought was such a plan on his site visit as well as the endorsed plans;
   3. he was not an arborist but he did not see the matter as urgent or consider the works to date had damaged either tree;
   4. he did see water around the tree but he said that he did not think that related to the work done and has asked the Council to look at the drainage;
   5. he asked the respondent's arborist to install some fencing for the trees which he considers to be adequate although he did not measure whether that precisely complied with any plans;
   6. as to one of the trees he considers that because less than 10% is impacted there is no need for fencing; and
   7. the manager on site told him that there would be no more works until all required plans were endorsed and approved under the Permit.
5. This evidence is broadly consistent with email correspondence provided by the applicant with her application.

1. The respondent says that there is no planning permit trigger to remove trees and that there is no breach of the Permit. She also says she has had little time to review that matter.
2. The respondent's representative said that a Tree Protection Management Plan had been provided to the Council on 9 May 2025 and that she was under the impression it had been approved. The Council did not confirm receipt of the plan but indicated that it had not been approved.
3. She says there is no urgency as no further work will be done until all documentation is approved under the Permit and a building permit is obtained. She says the client is hopeful that all this will be done shortly and that works will commence in January or February 2026.
4. She says that the respondent will suffer damage if the project is delayed and would seek compensation in the event that an interim enforcement order delayed commencement of the project if it were not ultimately found to be justified.
5. She stressed that there was no need for the order because no further works were planned and none would be undertaken until all requirements of the Permit were complied with and only after a building permit is issued. These instructions were confirmed by the respondent who was present in person at the hearing.
6. She says that there is no need for the order because by the time any further work commences, the required tree protection zone(s) will be in place and the tree(s) will be protected as envisaged and required by the Permit.
7. She indicated a strong desire on behalf of her client to pursue any entitlement to costs or damages arising from the proceedings.

1. I have decided that on the basis of the evidence before me that an interim enforcement order should not issue.
2. I have set out my findings below.

1. On the basis of the very limited evidence available to me and in the absence of any detailed submissions on this point, I find that the applicant's argument that the removal of trees and fencing on site prior to compliance with condition 20 of the Permit is a serious issue to be tried in this case.
2. I am not required to decide this issue, and I have not formed a view as to whether this argument will ultimately be successful. I do consider that there is a prima facie case to be argued at this stage.

1. I am required to consider where the balance of convenience lies. That is sometimes expressed as - which outcome carries the lesser risk of injustice if I am wrong? In this case, I consider that delaying the project in these circumstances is not justified. The balance of convenience does not require an order to be made, as I accept the clearly stated proposition that there will be no works until the TPMP is approved by the Council and all required approvals will be in place before any further work is undertaken.

1. I have no evidence before me from which to conclude that the works conducted to date have had a deleterious effect on the relevant trees. Further, I am told that no further works will occur until the conditions of the Permit are satisfied. In the circumstances, I agree with the Council and the respondent that the making of the order is not currently urgent.

1. I am required by the PE Act to consider whether the applicant is prepared to indemnify the respondent and to give an undertaking as to damages which may arise from the order being made. In this case no undertaking was offered and this weighs against the making of the interim enforcement order sought.

1. I have listed this matter for an early compulsory conference in the expectation that all parties will attend to discuss resolution of this matter. All parties indicated that they were available on this date. The parties should check the orders carefully and note that the compulsory conference will be held at the Bundoora Tribunal venue.
2. I have required the Council to provide copies of documents endorsed or approved under relevant sections of the Permit. This does not suggest that the applicant in this proceeding has any role in the approval of documents under the Permit. I have required it because discussion and resolution of this matter will require the parties to have access to these documents and a clear understanding of what is and what is not approved.
3. If the parties require anything further from each other they should work cooperatively together to be ready for the compulsory conference.
4. If the parties require advice or assistance in this matter they are encouraged to make arrangements to seek any advice required in advance of the compulsory conference.

1. On balance I am not satisfied that it is appropriate to make an interim enforcement order for the following reasons:
   1. I do not have clear evidence before me that there has been any impact of any tree sought to be the subject of a protection measure under the Permit which has arisen from the removal of other trees and vegetation and or carrying out or any work to date;
   2. The only sworn evidence given in this matter did not identify any damage, although the existence of pooled water near a tree was acknowledged but the source of that water was not identified;
   3. The respondent says that no further works will occur until the conditions of the permit have been complied with;
   4. There was no real 'urgency' identified at the hearing;
   5. The matter has been listed for an early compulsory conference at which the relevant issues can be discussed and may be resolved;
   6. The applicant was not prepared to give an undertaking as to damages;
   7. The form of order which the Council supports in its alternative submission (if I do not support its primary submission that no interim orders should be made) requires no more than compliance with the Permit. I do not consider it appropriate to make an order which requires no more than compliance with the Permit; and
   8. The hurdle faced by someone seeking an interim enforcement order is high. It must be supported by clear evidence which supports the alleged breach as well as the impact of any breaches. In particular, the urgency of the matter must be readily apparent and proved. That did not occur in this case.
2. The parties are expected to prepare carefully for the compulsory conference, and to seek any external advice or documents they require prior to that date.

Information for all parties is available at the Tribunal's website www.vcat.vic.gov.au

For information about what happens after you make your application, visit

www.vcat.vic.gov.au/afterapplyplanning

For information about responding to an application visit www.vcat.vic.gov.au/respondplanning

If you are not able to access the website, contact the Tribunal on 1300 01 8228 Monday to Friday 9:00am to 4:30pm to request a paper copy.

To find out about the Tribunal's support services such as interpreters, disability support and security, visit www.vcat.vic.gov.au/support

**

A compulsory conference is a private meeting between the parties to the proceeding.

With the assistance of a Tribunal member the parties can explore options to reach an agreement on all or some of the matters in dispute. The parties should come with an open mind and flexibility in considering options that could resolve the case.

Unless all parties agree, evidence of anything said or done in the course of a compulsory conference (including any document provided to the Tribunal for the purpose of the compulsory conference) is not admissible in any hearing before the Tribunal in the proceeding.

More information about compulsory conferences is available on the Tribunal's website at www.vcat.vic.gov.au and in VCAT Practice Note PNVCAT4 - Alternative Dispute Resolution (ADR).

If you are a party, you must attend the compulsory conference in person or by a representative who has written permission to settle the proceeding on your behalf. If you do not attend, the matter may be resolved in your absence and you may be struck out as a party. If all the parties present at the compulsory conference agree, the Tribunal may make a final order or make other orders that may affect you in an adverse way.

The Tribunal may make any of the following orders under the Victorian Civil and Administrative Tribunal Act 1998 (Vic):

• If you are the applicant, your application may be dismissed or struck out.
• If you are not the applicant, you may be struck out as a party. This means that you can take no further part in the proceeding, including the hearing.
• The matter may also be settled, for example, by approving the proposal with or without changes.
• You may be ordered to pay the costs of the other parties in certain circumstances.

Only parties to the proceeding may attend a compulsory conference.

A person is a 'party' to the proceeding if the person:

• lodged an objection to the planning application
• has given a completed Statement of Grounds form to the Tribunal by the due date and paid the fee
• has indicated in their Statement of Grounds form that they intend to participate in the hearing

The following persons are NOT a party to a proceeding:

• a person who did not lodge an objection to the permit application
• a person who did not give their Statement of Grounds form by the due date and/or did not pay the fee
• a person who has indicated on their Statement of Grounds that they do not intend to participate in the hearing

If you are not a party to the proceeding but wish to be heard, you can attend at the start of the compulsory conference and ask the Tribunal to join you as a party to the proceeding. You will need to explain why you should be joined as a party to the proceeding. Other parties will also be given the opportunity to tell the Tribunal whether they agree or disagree about you being joined as a party. The Tribunal will then make a decision to join you as a party or not.

If you are not joined as party, you cannot take any further part in the compulsory conference and the Tribunal may make a final order or make other orders that may affect you in an adverse way.

A party who is struck out because they do not attend a compulsory conference cannot participate in any further compulsory conference or hearing.

What happens if agreement is reached at the compulsory conference?

If the parties present at a compulsory conference reach agreement, the Tribunal may make a final order to give effect to the agreement without a hearing being required. This can include allowing the proposal with or without changes.

What happens if agreement is not reached at the compulsory conference?

If parties present at the compulsory conference do not reach an agreement, a hearing date/s will be confirmed. An order will be issued by the Tribunal.

What happens if a partial agreement is reached at the compulsory conference?

If the parties reach agreement about some issues but not others, the hearing will proceed. If the parties present agree, the Tribunal may make an order that limits the issues to be considered at the hearing or specifies issues that will not be able to be considered. The Tribunal may also make further orders that restrict the ability of parties to raise any matters that were resolved at the compulsory conference.

What should you bring to the compulsory conference?

Parties should be come to the compulsory conference with a summary of their issues and solutions. This could include possible changes that could be made to the proposal in order to address your concerns or the concerns of other parties. The attached 'Summary of Issues and Solutions for a Compulsory Conference' may be used. The applicant for the permit should bring an extra copy of any relevant plans including elevations.

SUMMARY OF ISSUES AND SOLUTIONS FOR A COMPULSORY CONFERENCE**

It is suggested that each party identify key issues and potential solutions before the compulsory conference. This will help to clarify the key issues that the parties consider most important to them and possible solutions.

Most important issues in dispute from your perspective (including any legal matters) Use additional pages if required

What potential solutions would you consider? Use additional pages if required

Signature:_______________________________________ Date:________________

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] See Campbell v Mtichell SC [2025] VCAT 208.

[3] Metroll Victoria Pty Ltd v Wyndham CC [2007] VCAT 748; C&R Building Pty Ltd v Yarra CC [2025] VCAT 276.

[4] [2003] VCAT 1954.

[5] The applicant wrote to the Tribunal on 7 January 2026 making further observations about the health or state of a tree or trees. The Tribunal did not give leave for further material to be filed and no other party was copied into the correspondence despite the Tribunal having previously drawn the applicant's attention to the requirement to copy any correspondence with the Tribunal to all other parties. I have not taken this correspondence into account.

[6] Campbell v Mitchell SC [2025] VCAT 208.

[7] This wording of the order proposed by the Council has been altered to a more formally express the position identified by the Council's representative.