Mr Jason Kane, barrister, appeared on the instructions of his client Mornington Peninsula Shire Council. He presented written and oral submissions.

Ms J. Lardner, barrister, appeared on the instructions of Taylor Splatt and Partners, solicitors, for the respondent, Janice Morphett.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under section 114 of the Planning and Environment Act 1987 (PE Act) for an enforcement order.

Failure to comply with the endorsed landscape plan approved and endorsed under planning permit P04/1395.

Lot 2 on Plan of Subdivision number 621346Y being the land in Certificate of Title 11141 Folio 320.

An irregularly shaped 'battleaxe' allotment of approximately 15 hectares with a narrow 'battleaxe handle' driveway fronting the south side of Cloud Street.

Design and Development Overlay (Schedule 3) as to part of the land.

Erosion Management Overlay (Schedules 1 and 2 as to part).

Environmental Significance Overlay (Schedule 17 as to part of the land).

Environmental Significance Overlay (Schedule 28 as to part of the land).

Morphett v Mornington Peninsula SC [2005] VCAT 1854.

Healy v Surf Coast SC [2005] VCAT 990.

City of Sunshine v Cima (1989) 3 AATR 313.

1. This is an application under section 114 of the Planning and Environment Act (PE Act) for an enforcement order.

1. This application by Douglas and Betty Young for an enforcement order in relation to property that adjoins theirs at Arthurs Seat near Dromana. Their concern is in relation to trees that have been planted or self sown that are growing up on the adjoining property so as to obscure magnificent panoramic views to the north and north east that they have enjoyed hitherto. These views are of the waters of Port Phillip Bay, the foreshore and hinterland.

1. The site concerned is a substantial area of land to the north of Cloud Street, Arthurs Seat. It is known as 28A Cloud Street. It has an area in the order of 15 hectares and it is in the shape that planners often refer to as a 'battleaxe' allotment.
2. Cloud Street is an east west street with dwellings fronting its northern side. The land falls significantly to the north from Cloud Street down towards Port Phillip Bay. The dwellings fronting the south side of Cloud Street are in a General Residential Zone. They command very favourable views to the north and north east.
3. The applicants, the Youngs, have their house at number 30 Cloud Street. Theirs is a single storey dwelling but arranged so as to take advantage of the views to the north and north east.
4. The main part of the respondent's land, the head of the battleaxe, is located to the north of the northern rear boundaries of the Young property and the neighbouring residential lots fronting the north side of Cloud Street. The head of the battleaxe part of the site is in a Low Density Residential Zone.
5. Numerous overlay provisions in the Mornington Peninsula planning scheme apply to that land. However, it is only the Design and Development Overlay, Schedule 4, that is really relevant for present purposes. I will refer to the Design and Development Overlay provisions later.
6. The head of the battleaxe is in the Low Density Residential Zone and is located to the north of and downhill from both Cloud Street and the residential properties fronting the north side of Cloud Street. Nevertheless, it requires access and it obtains that from Cloud Street. The 'handle' of the battleaxe is a strip of land running from the head of the battleaxe south and uphill on the eastern side of the Young property at 30 Cloud Street. The handle of the battleaxe has a frontage to the north side of Cloud Street located between the Young property and number 28, the next residential property to the east of the Young property where the respondent's land if 28A Cloud Street is disregarded. I assume that the portion of 28A located between the side boundaries of 30 and 28 Cloud Street is, in fact, in the General Residential Zone.
7. There is a very substantial house constructed on the head of the battleaxe allotment to the north and downhill from numbers 28 and 30. The construction of that dwelling required planning permission. I need to refer to some of the terms of that permit and to the circumstances whereby it came into existence. However, the Youngs based their enforcement application on what they allege to be a contravention of that permit, or rather a landscape plan approved and endorsed under it.

1. Planning permit P04/1395.03 was issued on 20 October 2005 at the direction of this Tribunal in its determination of Morphett v Mornington Peninsula SC[2]. That case was heard on 11 August 2005 and a written determination was given dated 1 September 2005. It was heard and determined by a member of the Tribunal other than myself.
2. There is an error in the title of the Tribunal proceeding. It is headed T & J Morphett as applicant with the correct responsible authority but with Ann Doyle and others recorded as respondents. The others included the Youngs who were already at 30 Cloud Street. Ms Ann Doyle was at 32 Cloud Street and the other parties were Mr and Mrs D'Ambrosio of 28 Cloud Street.
3. These five were objectors to the grant of the permit giving rise to that case. The responsible authority had determined to grant a permit and [2005] VCAT 1854 was, in fact, an objectors' application for review of that decision under s 82 PE Act. Strictly that case should be known as Doyle v Mornington Peninsula SC. Although T & J Morphett may have been the permit applicants, they were respondents to that Tribunal proceeding.
4. As their addresses suggest, the objectors have their houses immediately to the south of the head of the battleaxe, and with the driveway handle running between numbers 28 and 30.
5. A perusal of the reasons given by the Tribunal in that case make it clear that a major issue in that case, if not the major issue, was the question of views from the objectors' properties and the potential for the proposed development on 28A to obstruct those views.
6. In the first place this concern was in relation to the proposed built form for the house and other structures to be placed on the land. However, there was also concern about the potential for trees on the land to have that sort of detrimental effect on views from the objectors' properties.
7. The reasons given by the Tribunal repeatedly refer to the danger of interference with views and the need to protect shared view lines[3]. At paragraph 43 the Tribunal said:

[43] In my view the real issue is whether the buildings are visually obtrusive in terms of their impact on the outlook from adjoining properties to the south in particular Nos 28, 30 and 32 Cloud Street and whether as a result they impinge unreasonably on their view.

1. That paragraph refers to the central importance of views and the sharing of views. It refers specifically to 'buildings', but reading the reasons as a whole it is clear that the concern is not limited to buildings. It includes other structures and trees. This is clear from the reasons and the conditions imposed by the Tribunal when it granted a permit in that case.
2. The Tribunal referred to the well known case, in relation to views and the sharing of views, of Tashounidis v Flinders SC[4] and that case as amplified in Healy v Surf Coast SC[5]. In paragraph 44 of the earlier case in relation to this property the Tribunal set out a summary of the principles in relation to views in the following propositions as based on Tashounidis case amplified by Healy in the following terms:
   • There is no legal right to a view
   • Views form part of the existing amenity of a property and their loss is a relevant consideration to take into account
   • The availability of these views must be considered in the light of what constitutes a reasonable sharing of those views
   • In addressing the concept of reasonableness it is relevant to consider
     • The importance of the views to be lost within the overall panorama available and
     • Whether those objecting have taken all appropriate steps to optimise development of their own properties
   • Added emphasis will be placed on principles set out in the second and third dot points above if the issue of views is specifically addressed in the planning scheme
3. In paragraph 45 the Tribunal went on to refer to Design and Development Overlay (Schedule 4) and its recognition that views are important. The design objectives in clause 1 of schedule 4 of that overlay then (and now) provided:
   • To ensure that new development has proper regard to the established streetscape and development pattern in terms of building height, scale and siting, and to protect shared view lines where reasonable and practical.[6]
4. The Tribunal went on, at paragraph 46 to say:

[46] There is little doubt about the importance of views from a residential amenity point of view. The views from Cloud Street must be some of the best in Metropolitan Melbourne. All dwellings in the Cloud Street and Seahaze Street area have attempted to make the most of their opportunities to obtain part of these outstanding views.

1. In paragraphs 55 and 56 there is a further account of the extent of these views. The decision made involved a reduction in height of the proposed new building to reduce the impact on views.
2. There are other references to views but paragraph 75 refers to landscaping noting that the landscaping plan then proposed focused on the southern aspect of the proposed new dwelling and was relatively limited as to both sides of the driveway. That is significant because it is in relation to planting along the driveway that is the matter of complaint in the current proceedings. There is reference to containing large shrubs to a maximum height of 3m in relation to views although that might relate particularly to number 28.

1. The Youngs are concerned about a hedge of Cyprus trees that has been planted down either side of the battleaxe driveway and the potential for them to grow up into, and to obscure the excellent views from number 30 to the north and north east. Such a hedge could be kept trimmed down to a height so as not to interfere with views. I am not sure whether, at the present time, the Cyprus trees are intruding on the view. I note that they appear to have been trimmed at some stage.
2. The immediate concern is more with ornamental pear trees, also planted down each side of the driveway. The canopies of these trees are now high enough and broad enough to intrude significantly into views from the Young land. They do not, as yet, constitute a continuous hedge, but they are numerous enough and substantial enough to intrude to a significant extent on view lines from the Young property. I am satisfied that the photographs produced demonstrate that point.
3. Complaint has also been raised in relation to a young gumtree which, it is claimed on behalf of the respondent, is self sown. It too has been growing and developing and intruding.
4. Originally there was also complaint about a plane tree but it has been removed and is of no further concern.
5. It is obvious that all the concern and attention in relation to the placement and height of the house and other structures is redundant if the views sought to be protected in relation to those things can nevertheless be obstructed by trees.
6. There are certain substantial trees on number 28A that predate the house. The Youngs do not raise complaint about those pre-existing trees.

What permit conditions are said to be contravened?

1. The permit allows the construction of a dwelling, outbuildings and associated works in accordance with endorsed plans. Condition 1 concerns the approval and endorsement of plans. It requires the submission and approval of plans, in accordance with those submitted with the application marked 'Issue C' but modified in various specified ways. When approved by the responsible authority they are to be endorsed which will evidence their approval. Condition 1 specifies quite a number of required modifications.
2. Condition 2 comes into operation once such plans are approved and endorsed. It is a familiar form of condition that reads:

2.1 The layout of the land, the size and type of the proposed buildings and works, including the materials of construction, on the endorsed plan must be complied with and not altered or modified without the consent of the Responsible Authority.

1. The modifications required by condition 1 include those in 1.1.15 to 1.1.15.6. They read as follows:

1.1.15 A landscape plan for the area of the proposed dwelling and associated works and the development plan envelope that incorporates:

1.1.15.1 A survey of all existing vegetation and features in the area of the development;

1.1.15.3 a schedule of all proposed and/or existing trees, shrubs and ground cover shrubs including the location and size at maturity of all plants and their botanical name;

1.1.15.4 planting selected to retain views from the adjoining properties to the south;

1.1.15.5 planting selected to compliment the proposed dwelling and visually integrate it with the existing landscape and surrounds.

1.1.15.6 particular attention is to be paid to strengthening the planting on the northern and eastern elevations of the building within the building envelope.

1. The specification in 1.1.15.4 that plantings are to be selected so as to retain views from adjoining properties to the south is obviously of considerable importance. Properties to the south include the Young property.
2. The other condition of current relevance is number 11 which deals with landscaping. It reads:

11.1 The extent of clearing of trees and understorey as shown on the endorsed plans must not be altered or modified without the further consent of the Responsible Authority

11.2 Within six months of the practical completion of the dwelling[7] by this permit, landscaping works as shown on the endorsed plans must be completed and then maintained in a healthy condition, to the satisfaction of the Responsible Authority. Any dead or diseased trees or shrubs must be replaced as soon as reasonably possible. The area set aside for landscaping must be used for no other purpose.

11.3 All existing vegetation on the property to be retained be suitably marked before any development starts on the land. The vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.

11.4 All nature strips on the road reserves adjoining the subject land must be grassed and maintained by the owner or occupier of the land to the satisfaction of the Responsible Authority.

11.5 Temporary barricades to protect trees to be retained must be erected to the satisfaction of the Responsible Authority prior to the commencement of any work.

11.6 No goods or materials are to be stored or vehicles parked within the drip line of any tree to be retained.

11.7 No excavation, trenching or soil removal is to be carried out within 1 metre of any tree to be retained without the prior written approval of the Responsible Authority.

1. The permit was issued at the direction of the Tribunal. It purports to have been amended on 31 October 2008. It may have been purportedly amended more than once. However, the October 2008 amendment inserted some further requirements into condition 1 bearing the numbers 1.1.17 to 1.1.17.4 inclusive. However, it appears to me that this purported amendment is invalid having been purportedly made by the responsible authority when it did not have power to do so. At the time of the purported amendment ss 72 and 73 PE Act enabled the responsible authority to make some amendments but not others. The responsible authority could not amend a permit granted by the Tribunal. Anyone then seeking to make an amendment to such a permit needed to proceed under ss 87 and/or 89 PE Act. On the basis of what was put to me it appears that the responsible authority purported to insert these provisions under ss 72 and 73, but did so without power. On that basis those insertions are not valid.

1. Conditions like condition 1 in this permit are quite common. They usually, although not invariably, appear as the first condition. It is important to understand the purpose of such a condition, and its limitations.
2. Conditions generally impose direct requirements or limitations on the use or development for which the permit is granted. Condition 1 type conditions are rather different. Such requirements or constraints as they might contemplate are actually imposed by means of a condition like condition 2 in this permit.
3. The only obligation that condition 1 imposes is that modified plans be prepared and submitted for approval. The submission of plans is a requirement, if the permit holder proposes to act upon the permit. However, the purpose of condition 1 is to get to the stage of having plans approved and endorsed. Then condition 2 or similar provisions can require compliance with the approved plans.
4. Plans submitted for approval may or may not be approved by the responsible authority. The responsible authority might require further modifications. It has a discretion in relation to the approval and endorsement of plans. The expression 'to the satisfaction of the responsible authority' is sometimes used in condition 1 type conditions although the requirement of approval of the responsible authority amounts to the same thing. The responsible authority is not meant to approve and endorse plans unless it is satisfied with them.
5. However, it is for the responsible authority to determine what it will be satisfied with. It may be more rigorous about some aspects than others. It is obliged to be guided by the modifications required by the subparagraphs of such a condition. The approval and endorsement of a plan that was blatantly contrary to important and deliberate requirements in condition 1 might be held to be beyond power and invalid. The way of establishing that situation could be to apply for a declaration. No declaration has been applied for in the present case.
6. My point is that there is a degree of discretion in the responsible authority as to how rigorous its requirements will be in relation to a plan submitted for approval and endorsement.
7. The obligation imposed on the permit holder is to submit modified plans to be approved and endorsed by the responsible authority. Having done that, and such approval having been obtained, condition 1 is satisfied and the purpose for which the permit was granted may proceed.
8. In the present case plans were prepared and submitted pursuant to condition 1 for approval. They were approved and endorsed accordingly. These plans are exhibit K1 tendered at the hearing.
9. If the permit holder was dissatisfied with the requirements of the responsible authority in relation to plans tendered for approval and endorsement, the remedy would be to apply to this Tribunal under s 149 PE Act. No such review occurred in this case.
10. If there is a contravention in relation to this case it cannot be a contravention of condition 1 although there could be a contravention of what is depicted in the endorsed plans and that might amount to a contravention of condition 2.
11. As previously noted, the K1 endorsed plans were not challenged by the applicants or the respondent in the current proceedings, or by anybody else.
12. Insofar as it might be suggested that what has happened is contrary to condition 1, or in particular, subparagraphs 1.1.15 to 1.1.15.6, the notion is misconceived once the plans were approved and endorsed as they were on 12 December 2005. Condition 1 has been complied with.

1. Condition 1.1.15 and the subparagraphs under it required the plans that are to be approved and endorsed to include a landscape plan. Various requirements in relation to such landscape plan are set out including 1.1.15.4 calling for the selection of plantings that retain views from adjoining properties to the south such as the Young property. However, the question is whether the plans that were approved and endorsed satisfy that requirement, rather than whether what has happened since contravene the word or spirit of that piece of guidance.
2. It is quite common for planning permits to require landscape plans, as part of the approved and endorsed plans, or as plans separately approved and endorsed. However, in the vast majority of cases the purpose of such landscape plans, and the purpose of requiring them to be carried out is to improve the appearance of the site. Such planting may be to screen or partly screen or to soften the appearance of the existing or proposed new structures. They may be intended to add beauty and interest. The purpose is not necessarily limited to improving or softening the appearance of buildings or structures. Landscaping may be required on boundaries or in other positions to enhance the attractiveness of the final situation allowed pursuant to the permit.
3. Condition 11 on this permit requires the establishment and maintenance of the landscaping required in the endorsed plans approved under condition 1.
4. The combined effect is that the landscaping, as depicted in the endorsed plans, must be established and maintained. It specifies minimum requirements. What is depicted in the approved plans must be established and maintained but this does not prevent other plantings not required by the endorsed plans or condition 11. It requires some things but does not prohibit others. That turns out to be an important point in relation to the present case.
5. The permit specifies a minimum requirement in relation to landscaping and requires it to be provided and maintained, but it does not, in terms, impose a limitation upon other gardening or landscaping.
6. The responsible authority expressed some anxiety about the prospect of a contrary finding or interpretation. There is reference to the dangers of opening 'Pandora's box'. It can hardly mean, the responsible authority submits, that no other planting or landscaping, beyond that specified in the endorsed plan, can be carried out on the land. That would mean that a vegetable garden or a border of pansies or some Peace roses could not be planted, whether or not intruding upon views. The conditions require something, and it must be provided and maintained, but they do not, in terms, restrict landscaping or planting to what is so required. I think that this submission is correct.

1. The enforcement order provisions in the PE Act require the finding of a contravention of planning laws before an enforcement order can be made. Section 119 requires that contravention to be recited in the enforcement order document. In the present case the Youngs must establish a contravention or no enforcement order can be made. The contravention can be a contravention of the PE Act or the planning scheme or a permit including, in appropriate circumstances, contravention of approved and endorsed plans. However, I think the difficulty faced by the Youngs in relation to the present application is that they cannot point to a contravention. I find that they have an understandable, indeed a legitimate grievance, but I cannot identify any relevant contravention.

1. Exhibit K1 is the plan approved and endorsed under the permit that deals with landscaping. It depicts various trees and shrubs down each side of the battleaxe driveway and around the driveway where it runs onto the head of the battleaxe, behind the house. Two or three of these proposed plantings would be liable to grow up into the view lines from 30 Cloud Street. These would be few and would leave a reasonable sharing of views to be enjoyed by those at 30 Cloud Street. Most of the plantings depicted on the K1 plan would not intrude on views. As that plan is approved and endorsed under the permit, I think that the Youngs do not have a basis for complaint against what is there depicted.

1. The complaint of the Youngs is not in relation to plantings in accordance with the K1 plan, but other plantings that have taken place on both sides of the driveway including, particularly, the double row of Cyprus trees and the double row of pear trees. I consider their grievance to be justified. I am not sure, at this stage, whether the Cyprus trees intrude on their views, but I am satisfied that the pear trees do so and that such intrusion is clearly contrary to the intention of the Tribunal when the permit was granted.
2. There is not much use in approving and endorsing a plan for works and landscaping that carefully avoids undue intrusion on views from number 30 if, thereafter, other trees can be planted and allowed to grow so as to defeat the intended reasonable sharing of views. That is what has happened.
3. It is understandable that the Youngs should have considered that this should not have been allowed to happen. I do not know the state of neighbourly relations between the Youngs and the respondent although it appears that they are not, and have not been, so cordial and obliging as to enable a resolution of this grievance.
4. Understandably, the Youngs have looked to the permit, its conditions and approved plans to see if there is a basis for alleging a contravention that can found an enforcement order requiring removal or reduction in height of the pear trees.
5. A permit, including its conditions, ought to spell out clearly what obligations are imposed on a permit holder who decides to act on the permit. It is counterproductive to have uncertain conditions that subsequently give rise to doubts and arguments. The same is true in relation to an enforcement order, if one is to be made.
6. The Youngs, presumably expecting that the permit and its conditions would protect them, have looked for provisions that they can rely upon to give the basis for alleged contraventions. There are no specific or clear provisions in the permit that spell out restrictions on plantings beyond what is in the endorsed landscape plan which might intrude upon view lines. The Youngs are reduced to arguing that such restrictions are implied. They argue that what is on the plan is required but that it is implied that nothing else is allowed.
7. I do not doubt that, if this question had been raised at the previous Tribunal hearing, it would have been dealt with. Further conditions to those imposed were warranted. Such conditions would be in addition to the ordinary landscaping provisions requiring minimum landscaping to be established and maintained in the ordinary way. Such further conditions would conversely need to impose some restrictions upon what, beyond the landscaping requirements, would be needed to protect views.
8. No such further conditions appear in the permit. I assume that it did not occur to anyone at the time of the previous Tribunal decision that such further conditions were warranted. I think that the need has now been revealed but it appears to have been overlooked by the Tribunal, the responsible authority, the objectors and the permit applicant at the time of the previous case.
9. This seems to me to leave the Youngs in some difficulties. They wish to argue that restrictions on trees interfering with views are to be implied in the terms of the permit.
10. In my opinion they should be explicit, and not having to be implied. Furthermore, although I can see that such conditions might have been imposed if the need for them had been realised, the implication argued for is not specific as to the terms and limitations. I consider that such conditions ought to require the delineation of areas where the height of vegetation is to be limited in the interests of preserving views. Not only that, but I think such conditions would need to state maximum heights to which vegetation in those areas would need to be restricted. The working out of such areas and such heights would probably need to be undertaken carefully, perhaps with the assistance of evidence not before me in the hearing of this case. I imagine that height restrictions might be expressed in terms of Australia Height Datum, or by means of a relative level from some arbitrary starting point.
11. Such conditions would not, in terms of the fears expressed on behalf of the responsible authority, open 'Pandora's box'. Vegetables, pansies and roses, well below the level of restriction, could be planted and maintained.
12. However no such conditions appear in this permit and I consider the suggested implied condition to be unsatisfactory, both a condition, and as a basis for a contravention under the enforcement order provisions of PE Act. I think plantings defeating the primary purposes of the Tribunal in its determination of the previous case should have been avoided by the imposition of specific conditions. It is not enough to lower the level of the house and other structures and to include a reference to landscaping in the endorsed plan not interfering with views from the south, while allowing other higher trees, not on the endorsed plan, to have that effect.
13. The case put on behalf of the respondent relies on the proposition that there is nothing in the permit to prevent such planting in addition to that depicted on the endorsed plan and in those circumstances there is no contravention, or basis for an enforcement order in relation to the intruding pear trees.
14. In the course of argument during the hearing it was put to the respondent's barrister that this would mean that the respondent could, under the permit, plant a dense interlaced hedge of Cyprus trees right along the eastern boundary of number 30, and its northern boundary, which are common with the respondent's land and then allow such trees to grow to a height of 20 or 30m. That would completely curtain off all the valuable views to the north and north east from number 30.
15. The barrister conceded that this was the implication of her submission. Such an arrangement would completely negative the clear intention of the Tribunal to protect views and preserve a reasonable sharing of views of number 30.
16. At the beginning of the hearing the barrister on behalf of the responsible authority claimed that this case raised unusual questions. I think that is correct. I consider that conditions that require minimum landscaping do not, conversely, restrict landscaping to that depicted in the endorsed plans. I consider that further conditions would have called for, if it had occurred to the parties and been drawn to the attention of the Tribunal at the time the permit was granted. These matters were overlooked.
17. I am not prepared to imply such conditions where they do not appear, and where their limitations as to area and height would be left in doubt. I consider that the Youngs cannot, in the circumstances of this case, point to a contravention of the permit. That is because the permit lacks conditions which, at least with the benefit of hindsight, and the arguments advanced in this case, appear to me to have been required. I am not prepared to find a contravention in the circumstances.
18. The remedy, if there is one, might be an amendment to the existing permit to insert the necessary conditions to prevent plantings and self sown trees from destroying the views from number 30. It seems to me that, if my understanding expressed above is correct, a simple enforcement application at this stage will not avail the Youngs.
19. It is not my role to offer legal advice to the Youngs, or to any of the parties. They may wish to consider whether they could obtain an amendment to the permit to overcome what I consider to be its deficiencies. Sections 87 and 89 may be relevant in that connection. I do not think that the Youngs could establish a case under those provisions on the grounds in s 87(1)(a) or (b). Material mistake in relation to the grant of the permit, under s 87(1)(c) may be a possibility. Section 72 in its present form may be relevant.
20. I emphasise that I am not advising such a course and I am certainly not undertaking that such proceedings would necessarily be successful. All these things are matters that might be considered and upon which the Youngs might obtain advice.

1. In the meantime, I am not prepared to make an enforcement order at this stage as I do not consider that a reliable basis has been established for saying that there has been a contravention of the permit as it now stands.

1. At the conclusion of the hearing, after I had announced that I did not propose to make an enforcement order, applications were made on behalf of the respondent and the responsible authority for orders for costs. I reserved my decision on these applications.
2. In the first place s 109 of the Victorian Civil and Administrative Tribunal Act 1998 empowers the Tribunal to make orders for costs. It is true that the Tribunal is more ready to make orders for costs in enforcement order proceedings as compared to ordinary planning review cases. That does not mean that s 109 does not apply.
3. Section 109 provides that each party must bear their own costs unless the Tribunal makes an order under s 109(2) that a party pay all or part of the costs of another party. Section 109(3) provides that the Tribunal may only make such an order under subsection (2) if it is satisfied that it is fair to do so. Section 109(3) then goes on to set out various considerations to be taken into account in deciding whether it is fair to make an order for costs in relation to a particular case. The list is a little open ended as the last item in it provides that the Tribunal can take account of any matter not in the list that it considers relevant in the circumstances.
4. However, the ordinary rule is that each party must bear their own cost unless the Tribunal considers it fair in the circumstances to make an order for costs.
5. The Tribunal has often enough made orders for costs against unsuccessful respondents to enforcement order applications where the respondent knew full well that the planning laws were being contravened and refused or neglected to rectify the situation so that the responsible authority, or perhaps another person, felt compelled to take proceedings. City of Sunshine v Cima[8] is an early example of that approach. However, the circumstances in this case are quite different.
6. In this case it is the applicant for the enforcement order who has been unsuccessful. The applicant had a real and justifiable grievance and it is understandable that they consider that there should be a remedy available to them. An unusual and tricky situation arose. If I am correct in my finding they were unsuccessful, but only after considerable evidence and submissions in relation to doubtful and difficult propositions had been examined and argued about.
7. Again, if I am correct, the problem in this case arises because of a deficiency in the permit granted by the Tribunal. Whose fault was that? Whilst it might be understandable that the need for further conditions was overlooked in the circumstances I think the parties here, who were parties in that case, share responsibility for overlooking that need.
8. It would nevertheless be appropriate, if the need had been realised, to draw attention to what I have found to be a deficiency. The respondent shares in the oversight whether deliberately or by inadvertence.
9. Of course the occasion for any proceedings would not have arisen if the respondent had been prepared to remove or limit the height of the pear trees in deference to the views from number 30 that the Tribunal was clearly seeking to protect.
10. The responsible authority was represented in this case. Its representative indicated, from the outset, that it had not brought the proceeding and made no submissions as to what their outcome should be but that it appeared to assist the Tribunal in relation to the hearing and determination of the case. I appreciate that. I consider that its appearance and rendering such assistance was useful but also part of its responsibilities as responsible authority. Having regard to the shared responsibility in relation to the origins of the problem, in considering that the Youngs were seeking to remedy what I consider to be a legitimate grievance, I do not consider it fair in the circumstances, or in terms of s 109(3) to make an order for costs against the Youngs under s 109. That goes for the responsible authority and the application on behalf of the respondent, insofar as s 109 was relied upon in these circumstances in relation to the respondent.
11. An offer of compromise pursuant to ss 112, 113, 114 of the VCAT Act and dated 26 June 2015 was served. The offer was made by the respondent 'with prejudice' which meant that it could have been referred to in the course of the hearing. It was not referred to until the result and reasons had been announced orally. The offer to compromise the dispute contained the following:

(a) apply to the Responsible Authority for a Permit to modify the approved landscape plan so that any tree planting shown on the plan which abuts the north and east corner boundaries of the Applicant's [sic] property and replant the same with native plants (shrubs) which potentially will grow to a height no greater than three metres or thereabout;

(b) remove the Cyprus hedge which runs almost the full boundary of the eastern boundary of the Applicants' property and replant the same with native plants (shrubs) which potentially will grow to a height of no greater than three metres or thereabout; and

(c) remove all self seeded gum trees growing in or near the vicinity of the north and east boundaries of the Respondent's property and she further undertakes to the Applicants that as they appear all future self seeded trees in that area will be removed.

1. The respondent asserts that she has not breached the permit and, on the basis of the analysis I have given above, I uphold that view. The offer of compromise appears to seek to resolve the problems or grievances that have prompted the Youngs to bring the proceedings. It evidences a greater degree of neighbourly accommodation than I was aware of in the course of the hearing. I had said that it was a pity that, in all the circumstances, these neighbours had not been able to resolve their differences without enforcement proceedings. To that can now be added the offer of settlement which might have provided the basis for a neighbourly resolution. Beyond the written offer itself, I have no knowledge of what negotiations, if any, took place between the parties.
2. I do find some problems with the offer. The idea of removing Cyprus trees or limiting them to a height of 3m may have been sufficient to resolve what I have described as a reasonable grievance of the Youngs. I do not have the evidence, at this stage, to determine whether 3m would be here appropriate height.
3. I am not clear what is meant by abutting 'the north and east corner boundaries of the applicants' property'. I am not clear as to whether 3m is 3m above natural ground level, or altered ground level or as to whether that height is sufficient and appropriate. However, the offer includes the removal of the Cyprus trees and self seeded gum trees although it refers to such gum trees 'growing in or near the vicinity of the north and east boundaries of the respondent's property'. A little more clarity and precision is called for here. The north boundary of the respondent's property is the boundary furthest from the applicants' land, and well downhill. Perhaps the respondent really meant the northern property of the applicants' land where it is common with land of the respondent, but the offer does not say that. So far as the east boundaries of the respondent's land are concerned such east boundaries are not specified. Again a remedy might be reached if it was a reference to the east boundary of the applicants' land that is common with the land of the respondent. That would mean or include the western boundary of the respondent's battleaxe handle. That is not what the offer says.
4. Although the offer appears to evidence good intent, it is deficient in its terms. If the analysis I have adopted is correct, the remedy needs to be an amendment to the permit to limit heights rather than an amendment to the existing endorsed landscape plan. On the very submissions advanced by the respondent, and successfully advanced at the hearing, the solution in the offer would not suffice. An offer to consent to an amendment to the permit in appropriate terms, rather than to amend the endorsed landscape plan, would be more to the point.
5. Section 112 creates a presumption as to costs where a settlement offer is rejected if the Tribunal is of the opinion that the orders made by the Tribunal in the proceeding are not more favourable to the other party than the offer. The section says 'unless the Tribunal orders otherwise'. Otherwise the party making the offer is entitled to an order for all of that party's costs incurred after the offer was made.
6. It is true that the enforcement application is dismissed. The question arises as to whether acceptance of the offer would have been more favourable to the applicants.
7. To be effective the offer needs to be in clear terms and such that the other party could, and in the event should, have accepted it on those terms. The intent here appears laudable but the terms deficient.
8. In coming to my conclusion on the enforcement application I have accepted the submissions of the respondent. So far as this question of the offer of compromise is concerned, the offer will be more favourable than dismissal of the application only if the offer would be of some value to the applicants. However, on the respondent's argument I found that the application should fail because the argument about implied exclusions of things not appearing on the endorsed plan was not upheld. I held that the solution should have been, and as far as I can see, still is, an amendment to the permit by the insertion of new conditions rather than amendment of the endorsed landscape plan. On this basis I do not think that the offer has turned out to be more favourable because I do not think that it would have legally resolved the problem raised.
9. Section 112(2) VCAT Act refers to 'all costs incurred by the offering party after the offer was made'. Section 112(2) is subject to the qualification 'unless the Tribunal orders otherwise'. Although of the subsection refers to 'all costs incurred by the offering party' I assume the discretion extends to ordering something less than all the costs. In any event, the discretion is general and, although the requirements for s 112 to apply might be satisfied, the Tribunal might yet order otherwise. I further take it that it would be a valid reason for ordering otherwise if the Tribunal considered that to be just in the circumstances.
10. In present circumstances, and in spite of the good intent evidenced by the offer, I consider that the requirement for making an order under these provisions is not satisfied. In any event, as the offer was not, in my view, sufficient to resolve what I have taken to be a legitimate complaint, I think it is just in the circumstances that the parties bear their own costs.

[1] At the end of the hearing a decision and reasons were given orally. However, a request has been made for written reasons. The following is a revised version of the reasons given orally. The reasons have not changed but their setting out has been revised with a view to enhancing readability and to supply context information that was able to be taken as read in giving oral reasons but which needs to be supplied in written reasons so as to stand alone and be intelligible where some such information was not necessary in the context of oral reasons given in the course of the hearing.

[2] [2005] VCAT 1854.

[3] See paragraphs 15, 18, 32, 36, 37 and 43.

[5] [2005] VCAT 990.

[6] The emphasis was added by the Tribunal in that previous decision.

[8] (1989) 3 AATR 313.