1. For the reasons outlined above, we believe that Sisinni has not brought the application to cancel the permit 'as soon as practicable'. The application for cancellation is refused on this basis.
2. Even if the s 87 application had been brought in a more timely manner, we believe the application ought still properly be refused in this case because:
   • The 1998 permit was issued at the direction of the Tribunal and our finding on the evidence and submissions is that there has not been 'any material mistake in relation to the grant of the permit' for the purpose of the ground alleged under s 87(1)(c);
   • Our finding on the evidence and submissions is that there has not been 'any substantial failure to comply with the conditions of the permit' (our emphasis) for the purpose of the ground alleged under s 87(1)(b). The remaining contraventions are not sufficiently material to warrant a cancellation of the permit, and are (within our discretion) capable of being dealt with by way of enforcement order; or
   • The works have been substantially completed for the purpose of s 88(a)[20].

1. As indicated, to the extent the Tribunal's power under s 149B of the Planning and Environment Act 1987 is only exercisable by a presidential member, the application for declarations has been determined only by DP Dwyer.
2. The first five declarations sought by Sisinni essentially relate to the alleged non-compliance of the 'as built' development with the Tribunal's 2000 order, the 1998 permit and the 1998 plans. The finding on the evidence and submissions is that:
   • Sisinni has misconceived the proper basis for assessing building height;
   • the Council did not act wholly unreasonably in endorsing the 1998 plans; and
   • there is no substantial failure to comply with the Tribunal's 2000 order, the 1998 permit, or the 1998 plans that warrants the making of the declarations. The remaining contraventions are not sufficiently material to warrant the making of declarations, and are capable of being dealt with by way of enforcement order
3. The sixth declaration sought by Sisinni is that Isai failed to provide, and the Council failed to ensure that, monitoring reports were provided in accordance with the 2000 enforcement order. Whilst this ground is technically made out on the facts, the Tribunal sees no utility or practical use in making the declaration sought[21].
4. The seventh declaration sought by Sisinni is that the time for compliance with the 2000 enforcement order has expired. No substantive submission was made in support of this ground. Even if the enforcement order has expired (upon which the Tribunal makes no finding), nothing really turns on this given the nature of the current proceedings and the relief separately sought in relation to the 1998 permit and 1998 plans. The Tribunal again sees no utility or practical use in making the declaration sought.
5. The eighth and final declaration sought by Sisinni is that, because of its various failures, the Council has breached its duty under s 14(aa) of the Planning and Environment Act 1987 (relating to duties of enforcement) and s 14 generally. The Council clearly failed to enforce the monitoring regime required by the 2000 Tribunal order and this may have contributed to the events that have since transpired. Equally, it is conceded that Sisinni became aware in October 2001 that there were no monitoring reports, and Sisinni did not take any formal action in relation to this until September 2006. The Tribunal again sees no utility or practical use in making the declaration sought.
6. It follows that the Tribunal declines to make any declarations in this matter.

1. Our finding on the evidence and submissions is that there has not been any substantial failure to comply with the conditions of the 1998 permit or the 1998 plans. We have found against Sisinni on most issues in relation to the height and bulk of Unit 1. Alternatively, we have found in the circumstances that some other of the remaining contraventions do not now warrant the making of an enforcement order.
2. In relation to the western garage wall exceeding 3 metres, we do not propose to make any enforcement order. The purpose of discretion in relation to enforcement order proceedings is to achieve a fair and equitable outcome in redressing the underlying 'planning mischief'. Given our findings in relation to the wall, and the time that has elapsed, we do not believe it is appropriate to now make an arbitrary enforcement order in relation to this wall just because the non-compliance is proven.
3. The landscaping in the rear yard at Unit 2 and the side boundary fence at the front of the property, are however two straightforward matters where a breach of the 1998 permit and the 1998 plans is conceded by Isai. It is also relatively simple to address these two matters by enforcement order without undue prejudice to Isai resulting from Sisinni's delay in bringing the application. We have therefore made orders in relation to these two contraventions.
4. We appreciate that Sisinni will consider these enforcement orders to fall well short of the relief contemplated by these proceedings. However, this outcome is partly of Sisinni's own making through the delay in bringing the proceedings. The additional Unit 2 landscaping may at least resolve Sisinni's perception of overlooking from Unit 2 into the Sisinni property. However, if, after reflecting on our decision, Sisinni sees no utility in the enforcement orders we have made, we have built into the order an opportunity for Sisinni to give written notice not requiring the remedial works to be undertaken.

1. [1] References in this decision to 'Isai', 'Pantelidis' and 'Sisinni' refer respectively to the respondents and owners of the subject site at 16 Collins Street (Isai), the owners of the adjacent property to the east at 14 Collins Street (Pantelidis), and the applicants and owners of the adjoining property to the west at 18 Collins Street (Sisinni). For convenience, the collective family name is used, although individual actions recorded within the background facts may have been undertaken by individual family members.

[2] The application was originally only made under s 87(1)(b) but, at the hearing Sisinni also sought to rely upon the additional ground under s 87(1)(c). This was not opposed by the other parties.

[3] These plans are very important, and will be referred to in more detail later in the decision.

[4] [2000] VCAT 1657

[5] [2000] VCAT 1657 at para 241.

[9] Ms Davis opposed the Tribunal receiving written or oral evidence from Mr Rollis on the basis that it had not been provided as "expert evidence" in advance. Mr Rollis is a Council officer and was to some extent a co-submitter with Ms Collingwood on behalf of the Council, rather than an independent expert. He was however willing to be questioned by other parties given the nature of the proceedings. In the interest of fairness, the Tribunal allowed the material to be presented by Mr Rollis but granted an adjournment prior to cross-examination by Ms Davis.

[10] The Council initially objected to the Plan of Levels being tabled, without someone being called from DiMase Berry & Co to verify the plan. Ultimately, nothing turns on this, as there was not a significant variation from similar levels provided on behalf of Isai.

[11] Including the extract from paragraph 251 above.

[12] Following City of South Melbourne v Raftopoulos (unreported 1989/34936).

[13] Isai's planning consultant had been cross-examined on the issue at the previous Tribunal hearing

[14] [2000] VCAT 1657 , particularly at paras 214 & 216

[15] Following Associated Provincial Picturehouses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. Ms Collingwood also referred the Tribunal to the strictness of application of this test, by reference to Australian Pork Ltd v Director of Animal and Plant Quarantine [2005] FCA 671; (2005) 216 ALR 549, and the Tribunal decision in Ross v Stonnington City Council [2004] VCAT 2414.

[17] See for example, s 12 of the "Request to Cancel or Amend a Permit" (P2416/2006).

[18] Following, amongst others, Orr v Ford [1989] HCA 4; (1989) 167 CLR 316, 341

[19] However, as indicated in our conclusions below, we believe the delay is fatal to the application to cancel the 1998 permit.

[20] In the context of this decision, given our other findings, it is unnecessary to determine the applicant's argument that the buildings have not been 'completed' because they are unlawful.

[21] Following Hill v Campaspe [2005] VCAT 1128 and Wakefield v Wyndham CC (2004) 18 VPR 48, both referred to the Tribunal by the Council. In the latter case the Tribunal stated: " If a declaration will not have any useful effect or the substantive outcome can be achieved by other means, it is not appropriate for the Tribunal to make a declaration"