(a) The basis upon which costs are sought.

(b) The amount and details of the costs claimed, including any itemised bills with the invoices where relevant.

(c) The basis on which the costs are calculated (for example whether on the standard or indemnity basis.

(d) The reasons why costs should be awarded having regard to the provisions of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

1. By 4.00pm on 18 August 2025, any party who wishes to oppose or otherwise respond to an application for costs made under this order must give to the Tribunal and the parties:
   • A submission which explains the party's position in respect of the application for costs, including any basis on which the application for costs is opposed; and
   • A copy of any documents relied on in the submission.
2. Unless varied by further order of the Tribunal, the hearing of any application for costs will be conducted 'on the papers' on 1 September 2025.

Peter Tesdorf, town planner, Land Use Town Planning Service.

1. Whitehorse City Council ('Council') seeks enforcement orders under s 114(1) of the Planning and Environment Act 1987 (Vic) against the respondent for the destruction of vegetation (without first obtaining a planning permit under clause 42.03-2 of the planning scheme) on land situated at 32 Fuchsia Street, Blackburn, Victoria ('subject land').
2. The subject land is within Council's municipal district and under the schedule to clause 72.01. Council is the responsible authority for administering and enforcing the planning scheme except for matters specified in clause 72.01-1 and matters otherwise listed in the schedule.
3. At all material times, the respondent was the owner of the subject land.
4. The respondent has admitted to the destruction of vegetation as alleged by Council and that destruction of the vegetation required a planning permit under the Whitehorse Planning Scheme ('planning scheme'). However, the respondent does not agree to the proposed enforcement orders sought by Council and submitted that an alternative version of enforcement orders be made by the Tribunal in final determination of this proceeding.
5. The parties have helpfully provided the Tribunal with an agreed statement of facts and before considering the appropriate terms of any enforcement orders to be made, I have set out the relevant background facts largely taken from that agreed statement.

1. Under the planning scheme, the subject land is:
   1. included in the Neighbourhood Residential Zone (Schedule 1);
   2. affected by the Development Contributions Plan Overlay (Schedule 1); and
   3. affected by the Significant Landscape Overlay (Schedule 2).
2. Until October 2024, the subject land was developed with a single dwelling and a large shed (located on its southern boundary).
3. Sometime in October 2024, both the single dwelling and the large shed were demolished.

1. Relevantly, clause 42.03-2 of the planning scheme provides that a permit is required to remove, destroy or lop any vegetation specified in a schedule to that clause.
2. Schedule 2 to clause 42.03 specified (at all material times) that a permit is required to remove, destroy or lop a tree other than:
   • a tree having a single trunk circumference of 0.5 metre or less at a height of one metre above ground level;
   • the pruning of a tree for regeneration or ornamental shaping; and
   • a tree which is dead or dying to the satisfaction of the responsible authority.
3. A permit is also required to construct a building or construct or carry out works within four metres of a tree that does not meet the above criteria ('significant tree').

1. In June 2021, the respondent applied to Council for a planning permit to develop the subject land ('2021 permit application') for:
   • construction of a dwelling sited less than 4 metres from identified significant trees; and
   • removal of three significant trees.
2. The 2021 permit application was accompanied by an arborist report that relevantly identified the significant trees to be removed as Tree 12, Tree 23 and Tree 24.
3. A permit was required under clause 42.03-2 to remove each of Tree 12, Tree 23 and Tree 24.
4. In October 2021, Council issued a notice of refusal to grant a permit ('notice of refusal') on the following single ground:

The proposal to remove Trees 11, 23 & 24 fails to appropriately address the decision guidelines of Clause 42.03 or meet the policy direction under clause 22.04 - Tree protection or Clause 21.05 - Environment of the Whitehorse Planning Scheme.

1. The respondent applied to the Tribunal for a review of Council's decision to refuse the 2021 permit application and after a hearing, the Tribunal made an order dated 26 October 2022 set out in Goods v Whitehorse CC [2022] VCAT 1146 ('Goods') that confirmed Council's decision and directed that no permit was to be granted.
2. In respect to Tree 23 and Tree 24, the Tribunal stated in Goods:
   1. I firstly accept that the submissions and evidence that Trees 23 and 24 work together as a group to make a very significant contribution to the landscape qualities of this area. I find that they are the kind of trees that the statement of nature and key elements of landscape SLO2 describes as significant.
   2. I also prefer Mr Rogers' evidence that the trees in their present state are not hazardous, a view also expressed by council's arborist having regard to the attributes of these trees including their vigour, structure and form.
   3. While I also accept Mr Rogers' opinion that these trees may become hazardous if redevelopment of the site with a dwelling occurs in the way which he describes, this opinion:
      • assumes major encroachments into the TPZs of these trees which has not been informed by any non-destructive root investigation works;
      • assumes siting of a dwelling of similar proportions to the current proposal in a location beneath the limbs of concern;
      • is not based on a comprehensive hazard assessment that identifies, for example, the fall zone of limbs of concern and management measure to minimise risk;
      • is based on assumptions about the spatial needs of a 'family' home with features and proportions of the kind presently proposed; and
      • has not factored in the contribution these trees make to the landscape significance of the area including the direction sought by planning scheme policies and the SLO2.
   4. While the siting of Trees 23 and 24 and other vegetation proposed to be retained do pose some constraints on the development opportunities of this site, conversely there is strong planning scheme support for the conservation of large trees of this kind. In reconciling these competing objectives, I am again reminded of the neighbourhood character statement for this location which concludes that the 'preservation of its significant landscape character and environmental integrity is the highest priority'. This leads me to attach greater weight to the retention of these trees than the achievement of the proposed dwelling development at their expense.
   5. Further, the site is not without its opportunities that otherwise compels the dwelling's design and siting in the location and manner proposed.

3. In July 2022, the respondent made a planning permit application to develop the subject land ('2022 permit application') for:
   • construction of a dwelling sited less than four metres from identified significant trees; and
   • removal of identified significant trees.
4. The 2022 permit application did not seek the removal of Tree 23 or Tree 24.
5. On 19 February 2023, Council issued Planning Permit WH/2023/569 ('2023 Permit') that granted approval for the development proposed in the 2022 permit application.
6. The 2023 Permit was relevantly subject to the following conditions:
   1. Before the development starts, or vegetation is removed, amended plans must be submitted to and approved by the Responsible Authority...When approved, the plans will be endorsed and will form part of the permit. The plans must...be generally in accordance with the plans submitted with the application but modified to show:

a) A Tree Management Plan in accordance with Condition 4;

1. Before the development starts, a Tree Protection Plan (TPP) must be submitted to and approved by the Responsible Authority in a digital format...the TPP must include:

a) A Tree Protection & Management Plan (TPMP) must be submitted to, approved, and endorsed by Council prior to the commencement of all buildings and works...It must detail how Trees....23, 24, ... will be protected Pre-Construction/Demolition Stage, during Construction Stage, the Landscape Stage, and the Post Construction stages, and must be to the satisfaction of the Responsible Authority (RA).

1. The Tree Protection & Management Plan (TPMP) must detail how the driveway proposed within the Tree Protection Zone of Trees...23 will be constructed above current grade; and be construction on foundations that maintain appropriate permeability for the tree, to the satisfaction of the Responsible Authority (RA).

d) The Tree Protection & Management Plan (TPMP) must detail how all building foundations within the Tree Protection Zone of Trees 23, 24 ... will be constructed using root sensitive techniques (e.g. pier and beam, waffle slab, suspended slab or cantilevered foundations), with no change to the existing soil levels, to the satisfaction of the Responsible Authority (RA).

....

g) Prior to the commencement of any site works, including demolition and excavation, the Responsible Authority (RA) must be provided with evidence that a project arborist has been engaged as part of the ongoing consultant team to oversee all buildings and works, and to ensure the development does not have a detrimental impact on the ongoing health and stability of the trees to be retained. The project arborist must have a qualification in arboriculture and hold a minimum Diploma in Horticulture (Arboriculture) to be the project arborist.

1. To date, no amended plans have been provided to Council or endorsed by Council in furtherance of the 2023 Permit.
2. Sometime prior to April 2024, by means of holes drilled into the trunks near the ground, the herbicide Glyphosate (Roundup) was applied to Tree 23 and 24, destroying both of them.
3. In late 2024, the respondent made an application to amend the 2023 Permit described as follows:

Please find attached our S72 amendment application for a Planning Permit for the above project.

Due to Trees 23 and 24 being dead, we request that this amendment includes the removal of these trees in the application.

1. In or around October 2024, the single dwelling and large shed on the land were demolished.
2. Due to the failure of the respondent to provide information requested by Council by the required date, the amendment application lapsed on 8 November 2024.

1. Council seeks three substantial things be done by the respondent in its form of enforcement order, namely the:
   1. preparation of a revegetation plan including provision for certain mandatory matters;
   2. content and approval of a revegetation plan; and
   3. implementation of an approved revegetation plan.
2. The parties disagree on the preparation of the revegetation plan and specifically the requirement that replacement trees for Tree 23 and Tree 24 be provided for 'in and around the same location' as previously existed.
3. Council's proposed paragraph 1 of the enforcement order is as follows:
   1. Within 60 days of the date of this Enforcement Order, the Respondent must submit to the Responsible Authority, for its approval, a Revegetation Plan, which must:
      1. be prepared by an Ecologist or Environmental Consultant with qualifications and experience to the satisfaction of the Responsible Authority; and
      2. to the satisfaction of the Responsible Authority, provide for the planting and ongoing protection and maintenance of a minimum of three appropriate canopy trees:
         1. of a species identified by accessing the 'Indigenous Plant List' for the Subject Land through the interactive map found at https://map.whitehouse.vic.gov.au;
         2. at a minimum height of 1.5 metres at the time of planting; and
         3. in and around the same location as the trees identified in the report prepared by 'Landscapes by Design' (dated 15 June 2021) as 'Tree 12' (Yellow Box), 'Tree 23' (River Peppermint) and 'Tree 24' (Yellow Box).
4. The only point of contention raised by the respondent to the above terms of paragraph 1 is the requirement set out in subparagraph 1(b)(iii).
5. The respondent submitted that Council's proposed subparagraph 1(b)(iii) should be replaced with the following:

• Enhancing fauna habitat by creation of connected with other retained trees on the site;
• Allowing sufficient spacing between trees to facilitate growth;
• Meeting clearance distances from buildings and areas of open ground specified in Clause 15.01-5L Tree Protection Policy and Schedule 2 of the Significant Landscape in the Whitehorse Planning Scheme;
• Providing sufficient room in the central part of the site for a new dwelling; and
• Avoiding future conflict between tree root zones and buildings when the trees mature.

1. The respondent is critical of the imprecision in the phrase 'in or around the same location' submitting that there is no certainty as to where the replacement trees are to be planted.
2. The essence of the respondent's opposition to the requirement in subparagraph 1(b)(iii) lies not with the uncertainty that comes from the use of the phrase 'in and around the same location', but rather because:
   • the 'location' is too close to the proposed dwelling, such that the dwelling footings and the tree roots will compete with each other;
   • potential falling limbs from the tree canopies will compromise human safety; and
   • There are more suitable locations on the subject land where replacement trees can be planted, including in proximity to other canopy trees to create a 'connected canopy' which will assist in creating improved habitat for local fauna.
3. In order to create the circumstances 'more suitable locations' for the planting of replacement trees, the respondent submitted that it may be necessary to amend the 2023 Permit. No such amendment application has been made and the respondent's representative was unable to give any indication on how the design of the dwelling approved under the 2023 Permit might be amended to provide for the 'more suitable locations'.
4. The respondent submitted that expert arboricultural evidence given at the hearing in Goods supported the conclusion that retention of Tree 23 and Tree 24 would substantially restrict the use and development of the subject land and limit the siting options for a new dwelling.
5. The respondent also relied on a draft Revegetation Plan dated 11 June 2025 prepared by Practical Ecology showing the location for replacement trees (for Tree 23 and 24) towards the southern boundary of the subject land. The author of that plan was not called to give evidence at the hearing.

1. There is some force in the respondent's submission that the use of the phrase 'in and around the same location' lacks precision or certainty, however simple redrafting of the requirement or use of a plan could easily erase any uncertainty.
2. I do not accept that replacement trees planted in the same (or relatively close by) locations of Tree 23 and Tree 24 (before removal) would compromise human safety, interfere with development approved by the 2023 Permit or substantially interfere with the ability to develop the subject land for residential purposes. There is no evidence to support such findings in this proceeding.
3. In addition, it is clear to me that the following findings were made by the Tribunal in Goods:
   1. Tree 23 and Tree 24 make a significant contribution to the landscape qualities in the area;[1]
   2. Tree 23 and Tree 24 were not hazardous;[2] and
   3. A modestly proportioned dwelling could be accommodated on the subject land with the retention of Tree 23 and Tree 24.[3]
4. The above findings of the Tribunal have not been overturned by the Supreme Court and therefore are findings of fact that I can reasonably have regard to in this proceeding.
5. Further, the existence of the 2023 Permit demonstrates that the retention of Tree 23 and Tree 24 did not substantially restrict the use and development of the subject land for a dwelling.
6. I find that there is nothing in that Revegetation Plan that proffers an expert arboricultural opinion as to why the location shown is a 'more appropriate location' to that proposed in Council's draft enforcement order.
7. The respondent's reasons for submitting that more appropriate locations on the subject land for the replacement of Tree 23 and Tree 24 are based on their desire for the central part of the subject land to be free from significant vegetation to allow for a new dwelling to be constructed in that location. This is clear from the respondent's proposed subparagraph 1(b)(iii). However, my task in this proceeding is not to make enforcement orders that reflect the convenience or preference of one party or another or to determine this application as if it were a permit application to remove the relevant vegetation.
8. On the facts of this matter, where liability is not in issue, my task is to make an enforcement order that I think fit.[4]
9. I note that s 119 of the Planning and Environment Act 1987 (Vic) provides:

An enforcement order made by the Tribunal-

(a) must specify -

(i) the use or development which contravenes or has contravened or will contravene this Act or the planning scheme, permit condition or agreement; and

(ii) any other prescribed information; and

(b) may direct any person against whom it is made to do ay one or more of the following -

(i) to stop the use or development within a specified period; or

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

(iii) to maintain a building in accordance with the order; or

(iv) to do specified things within a specified period -

• (A) to restore the land as nearly as practicable to its condition immediately before the use or development started or to any condition specified in the order or to any other condition to the satisfaction of the responsible authority, a Minister, public authority, municipal council, referral authority or other person or body specified in the Order; or
• (B) to otherwise ensure compliance with this Act, or planning scheme, permit condition or agreement under section 173.

1. On the facts of this matter, I see fit to make the enforcement order set out in Appendix A because that order will restore the land as nearly as practicable to its condition immediately before the unlawful destruction of the significant trees on the subject land because the order requires replacement trees to be located within a defined radius of the previous locations of Tree 12, Tree 23 and Tree 24. I am not satisfied on the material before the Tribunal that there are any other more appropriate locations that will restore the land as nearly as practicable to its condition immediately before the unlawful destruction of these significant trees.
2. It will be noted that the final form of order is based on Council's proposed subparagraph 1(b)(iii) however, to avoid any uncertainty, I have required the replacement trees to be planted within a two metre radius of their original locations as shown in the Landscapes by Design report dated 15 June 2021.

On land situated at 32 Fuchsia Street, Blackburn, which is land referred to in certificate of title Volume 06884 folio 776 (being lots 1 and 2 on Title Plan 574285N) ('subject land'), the respondent has destroyed vegetation without a planning permit contrary to clause 42.03-2 of the Whitehorse Planning Scheme.

1. By no later than 12 September 2025, the respondent must submit to the responsible authority for its approval, a Revegetation Plan that must:

(a) be prepared by an ecologist or an environmental consultant with qualifications and experience to the satisfaction of the responsible authority; and

(b) to the satisfaction of the responsible authority, provide for the planting and ongoing protections and maintenance of three appropriate canopy trees:

1. of a species identified by accessing the 'Indigenous Plant List' for the subject land through the interactive map found at https://map.whitehorse.vic.gov.au;
2. at a minimum height of 1.5 metres at the time of planting; and
3. within a radius of two metres (or within a radius otherwise agreed to in writing by the responsible authority) of the location of trees identified in the report prepared by 'Landscapes by Design' (dated 15 Jue 2021) as 'Tree 12' (Yellow Box), 'Tree 23' (River Peppermint) and 'Tree 24' (Yellow Box).

1. Without limiting the content of the Revegetation Plan, the Revegetation Plan must, to the satisfaction of the responsible authority:

(a) show the location of all existing and proposed buildings and works, easement and other site features;

(b) include appropriate provisions to seek to achieve the objectives of clause 15.01-5L-01 of the Whitehorse Planning Scheme;

(c) provide for assessment and selection of tree stock against the requirements of AS2303-2018 Tree Stock for Landscape Use;

(d) set out requirements for initial staking, mulching and irrigation of the planted trees;

(e) provide for a maintenance period of not less than ten years;

(f) include a requirement for regular monitoring and reporting to the responsible authority; and

(g) provide for replacement of any tree planted in accordance with the Revegetation Plan which subsequently becomes damaged, diseased or dies (or becomes otherwise unviable).

1. After the responsible authority has approved the Revegetation Plan, the respondent must implement and comply with all of the provisions, requirements and recommendations of the Revegetation Plan:

(a) in accordance with the Revegetation Plan; and

(b) to the satisfaction of the responsible authority.