Planning and Environment Act 1987 Victorian Civil and Administrative Tribunal, Planning List APPLICATION FOR Application Number: ENFORCEMENT ORDER Date Received: Section 114 to 120 of the Planning and Environment Act 1987. The relevant fee must accompany this application. This application should be sent to or lodged with: The Principal Registrar Victorian Civil and Administrative Tribunal 55 King Street, Melbourne, 3000. (Telephone (03) 9628 9777; emergency after hours recorded information service (03) 96253403; Fax (03) 9628 9789). I APPLY TO THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL FOR AN ENFORCEMENT ORDER UNDER SECTION 114 OF THE PLANNING AND ENVIRONMENT ACT 1987 AS SET OUT BELOW: The Applicant submits that if the Respondents do not file an objection to the making of this Order with the Tribunal within 14 days from the date of service on them of this Application, the Tribunal should make the Order under Section 116 of the Planning and Environment Act 1987 without further prior notice to the Respondents.
1. THE APPLICANT Rosanna Parklands Protection Association Incorporated 2. WHO IS THE ORDER TO BE MADE AGAINST? (“The Respondents”) Name Banyule City Council Address PO Box 51 Ivanhoe 3079 Name Address
3. THE LAND about which an order is sought (“the subject land”) Address 153 Lower Plenty Rd Municipality Banyule Please attach a copy of a recent search of the title to the land. NOTE: If a search of title is not supplied, the normal procedure of the Tribunal is to ask the applicant to provide one, and wait for it before taking further action on the application. The search must not be more than 14 days old.
4. WHO OWNS THE SUBJECT LAND? Name Banyule City Council Address of owner PO Box 51 Ivanhoe 3079
5. WHO OCCUPIES THE SUBJECT LAND? Name Public Open Space Address of occupier 6. GROUNDS ON WHICH THIS APPLICATION IS MADE A. Describe what is being done or not done that is a breach of the Act, Planning Scheme, Permit conditions, etc.. This application is to ensure preliminary works on the implementation of the masterplan for Rosanna Parklands, by Banyule City Council, cease until the review of the permit is completed by VCAT The VCAT review date is currently February 1, 2005. Preliminary works on the implementation of the masterplan encompass the canopy removal and poisoning of up to 96 trees and the lopping of up to 94 trees in order to ensure that the western boundary pedestrian area can remain a pedestrian area as proposed in the masterplan. Council have confirmed that they will address 6 trees before Christmas this year and the remaining 184 trees bit by bit after that. 190 of the 261 trees on the western boundary have been recommended for removal or lopping by council commissioned arborist within 2 years of March 2004 (many more urgently). The proposed masterplan, is to retain the western boundary as a thoroughfare and formalise the path there. Council will maintain that the removal of the 6 trees is for safety reasons. RoPPA believe that what Council is doing constitutes preliminary works on the implementation of the masterplan. B. Specify the provision being contravened:) · Section of the Planning and Environment Act 1987; · Clause 43.01, 44.01, 52.17, 42.02, 15.09 of the Planning Scheme; · Condition of Permit no. , a copy of which is attached; · Paragraph of the agreement made under Section 173 of the Planning and Environment Act 1987, a copy of which is attached. C. State who is contravening this provision: Banyule City Council These tree works should they proceed will restrict the outcome options available to VCAT. The outcome options that VCAT will consider in making it’s decision and recommendations currently include: · Denying the grant to implement the masterplan · Placing conditions on the permit such as relocation of the proposed pedestrian area to a more suitable area (arborist for the appellant recommends the pedestrian area be sited in the more open area east of the western boundary trees) · Placing a condition relocating the pedestrian area away from the existing river red gums on the western boundary (Department of Sustainability and Environment recommendation is that the department “would have no objection to the application if the alternate route proposed during that inspection be adopted, thereby avoiding the need to lop large old Red Gums now or in the immediate future to make the path safe for users.” – Current permit does not include this condition) · (hand written into application was the following – current VCAT options also include recommendation to hear the permit for imminent native vegetation removal or lopping at the same time as the permit for the implementation of the masterplan, as the decision to continue the pedestrian area on the western boundary is a threat to the retainment of native vegetation) Tree works proposed will restrict the above options of VCAT by · Threatening the river red gums. (Appellant’s arborist has recommended that Consideration needs to be given to the effect on adjoining trees if a decision is made to remove a single tree. The sudden change of the wind dynamics in a group of trees can cause unexpected failures, due to the remaining structures being unable to cope in the short term with the new forces imposed.) · Tree works that council is about to commence include the possible canopy removal and poisoning of many of the river red gums. These trees have been recommended for removal or lopping, for safety of the proposed pedestrian area, but have the conservation status of “Endangered” and such trees would be of High Conservation Status with respect to Table 5, page 53 of Victoria's Native Vegetation Management - a Framework for Action. Alternatively Council may decide to move the pedestrian area away from these particular trees, but if so, the tree removal works carried out on adjoining trees would then become redundant. · Commencement of tree works bit by bit cannot be justified as appellants arborist has indicated that removal of only a few trees will not mean that the entire strip would be safe for the use that is proposed. · Safety in the area has been addressed by the erection by Council of a temporary fence to restrict pedestrian access into the tree hazard area. The risk in the area is now an obvious risk. Such fencing can remain or be extended as required until after VCAT hearing. Commencement of the implementation of the masterplan by addressing trees in the proposed pedestrian thoroughfare will reduce the amenity and habitat value of the area before review of the permit application by VCAT. Note: Describe what is being done or not done and how the use or development contravenes or will contravene the Act, a Planning Scheme, a condition of a permit, or an agreement under section 173 of the Act. You should specify the provision being contravened and the way in which it is being contravened. If a contravention of a planning permit or a section 173 agreement is involved you should attach a copy of the permit or agreement and any relevant plan. You should state the name and address of the person or corporate entity who is contravening the relevant provision.
7. WHAT PLANNING SCHEME APPLIES TO THE SUBJECT LAND? State the name of the Planning Scheme: Banyule City Council Planning Scheme
8. WHO ELSE MAY BE AFFECTED? A Are you aware of any other person or persons who have been or may be adversely affected by the alleged contravention? If so, you are required to supply details of names and addresses. Attach a list if necessary. Residents of Banyule and neighbouring municipalities B Are you aware of any other person who may be adversely affected if the order is made? If so, you are required to supply details of names and addresses. Attach a list if necessary. NOTE: Section 117(1) of the Act requires the Tribunal to give to persons in the categories 8A and 8B above an opportunity to be heard or to make a submission. If the Responsible Authority or other parties who are given notice of this application are aware of persons who should have been specified in 8A or 8B but have not been so specified, they must inform the applicant and the Registrar in writing of the names and addresses of those persons as soon as possible, and the applicant should promptly give notice of the application to those persons.
9. WHO IS THE RESPONSIBLE AUTHORITY? (IF NOT THE APPLICANT) Name: Banyule City Council
10. THE APPLICANT SEEKS THE FOLLOWING ORDERS: State the orders that you want the Tribunal to make. I am seeking an Enforcement Order preventing Banyule City Council from commencing any works besides temporary fencing for safety reasons with respect to Rosanna Parklands until after the scheduled VCAT hearing.
11. OTHER ACTIONS AFFECTING THE LAND Are you aware of any other proceedings before the Tribunal relating to this land? If so give details, including application numbers. P 2104-2004 VERIFICATION - COMPLETE ONE PANEL. PANEL A - APPLICATION BY RESPONSIBLE AUTHORITY The application must be signed by an officer of the responsible authority authorised for the purpose. Name of Officer (print) ........................................................ Signature ...................................................................... Date ..........................................................................
PART B – APPLICATION NOT BY RESPONSIBLE AUTHORITY The applicant’s signature must be witnessed by an adult witness. Signature of applicant .............................................................. Signature of witness ................................................................. Name of witness (print)........................................................... Address of witness ................................................................... ........................................................................... Date .......……………..
PAYMENT OF FEE
The filing fee of $31.70 or application for exemption must accompany this Application.
If you wish to apply to have the fee waived that you must: 1. be the holder of a current Government Benefit Card and provide a copy; and 2. provide a statement setting out the following: a) The applicant’s current net income (weekly or monthly); and b) A statement as to what effect the payment of the fee will have on the applicant’s financial situation (ie will the payment result in the applicant suffering financial hardship). If the above information has been provided, the Principal Registrar will consider the request and advise the applicant of the outcome. If the fee has not been paid or waived your application will be deemed not to have been lodged until the fee is paid or waived by the Principal Registrar. ______________________________________________________________ SERVICE OF APPLICATION
After lodging the application with the Tribunal you will receive an acknowledgment letter with an enclosure. A copy of your Application together with a copy of the Tribunal’s notice must be served on all parties named in the Application within 7 days. INFORMATION FOR RESPONDENTS If an enforcement order is sought against you, there are two alternatives, which you may follow. 1. If you do not contest the application: Unless the Tribunal receives a written objection from a Respondent (a person against whom the order is sought) within 14 days from the date of service of the Application on that Respondent, the Tribunal may make an order under Section 116 of the Planning and Environment Act 1987. This order may be in the terms of the order sought by the Applicant as set out in the Application, or in different terms, if the Tribunal thinks fit. 2. If you do contest the application: If you wish to argue that the order sought should not be made, you should contest the application. You must file a written objection with the Tribunal within 14 days from the date of service of the Application on you. This document must set out your grounds of objection to the making of an enforcement order. You must also serve a copy of the objection on the Applicant and the Responsible Authority (if not the Applicant) within the 14-day period. Once the Tribunal receives an objection, it must arrange for a hearing of the Application, at which the Applicant, the Respondent, and certain other persons will have an opportunity to be heard. PART 2 – ADDITIONAL INFORMATION REQUIRED FOR APPLICATION FOR INTERIM ENFORCEMENT ORDER Section 120 of the Planning and Environment Act 1987. An additional filing fee of $31.70 or application for exemption must accompany this application. (See notes on page 4) IMPORTANT NOTES: An Application has to be made for an enforcement order under Section 114 before an application for an interim enforcement order under Section 120 can be heard. The two applications may be lodged simultaneously. An application for an interim or ex parte interim enforcement order should only be made when there is genuine urgency. An application for an interim and ex parte interim enforcement order should be supported by an affidavit swearing to the truth of the contents of the application and of any other facts on which the application is based. An application for an interim or ex parte interim enforcement order should be accompanied by a draft setting out the text of the order sought. Section 120(3)(b) of the Act requires the Tribunal, before making an interim enforcement order, to consider whether the application should give any undertaking as to damages. The undertaking gives some protection to a person against whom an order is made where it is ultimately decided that no enforcement order should be made and the person has suffered loss by reason of the interim enforcement order having been made. I APPLY TO THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL FOR AN INTERIM ENFORCEMENT ORDER UNDER SECTION 120 OF THE PLANNING AND ENVIRONMENT ACT 1987 AS SET OUT BELOW: 12. WHY IS AN INTERIM ORDER BEING SOUGHT? Explain why the case is urgent. Describe the harm that would happen if an interim order is not made: 13. HAS NOTICE OF THIS APPICATION BEEN GIVEN TO ANY OTHER PARTY? YES/NO
If yes, set out details of the notice and to whom it was given. If no, explain why the case is so urgent that an interim order should be made before notice is given to any other person about this application. 14. IS THE APPLICANT PREPARED TO GIVE AN UNDERTAKING AS TO DAMAGES? YES/NO The usual form of such an undertaking is:-
If the Tribunal ultimately decides that an enforcement order should not be made, and a court or the Tribunal decides that any person has suffered loss or damage as a result of the making of this Interim Enforcement Order and further decides that I should compensate that person for the loss and damage suffered, I undertake that I will pay the amount assessed by the court or the Tribunal to that person. VERIFICATION – COMPLETE ONE PANEL
PANEL A – APPLICATION BY RESPONSIBLE AUTHORITY The application must be signed by an officer of the responsible authority authorised for the purpose. Name of Officer (print) ………………………………. Signature ……………………………………………. Date ……………………………………………………..
PART B – APPLICATION NOT BY RESPONSIBLE AUTHORITY The applicant’s signature must be witnessed by an adult witness. Signature of applicant ……………………………………………. Signature of witness ………………………………………………. Name of witness (print)……………………………………….. Address of witness ……………………………………………… ……………………………………………… Date……………………………………
Planning and Environment Act 1987
Victorian Civil and Administrative Tribunal Act 1998 PLANNING LIST No. EX PARTE INTERIM ENFORCEMENT ORDER
APPLICANT: PERSONS AGAINST WHOM ORDER MADE (Respondent): RESPONSIBLE AUTHORITY: WHERE HELD: BEFORE TRIBUNAL MEMBER: DATE OF HEARING: DATE OF DECISION: NATURE OF APPLICATION: Ex parte application under S.120(2) HOW OBTAINED: On application made by the Applicant, supported by an affidavit sworn by dated………………. APPEARANCES: NATURE OF CONTRAVENTION: UPON THE APPLICANT making the following undertaking: if the Tribunal ultimately decides that an enforcement order should not be made, and a court or the Tribunal decides that any person has suffered loss or damage as a result of the making of this Interim Enforcement Order and further decides that I should compensate that person for the loss and damage suffered, I undertake that I will pay the amount assessed by the court or the Tribunal to that person – THE TRIBUNAL ORDERS as follows: 1. [Insert what the order requires to be done or not done} 2. The further hearing of the application for an Interim Enforcement Order is fixed for am/pm on 2000 at 55 King Street, Melbourne, at which time the Respondents may be heard by the Tribunal in relation to this order. 3. The Applicant must serve a copy of this order, together with copies of the affidavits, exhibits and supporting documents relied upon in the application, on each of the persons against whom this order is made no later than 48 hours before the date and time fixed for the further hearing. 4. Service must be effected under Section 140 of the Victorian Civil and Administrative Tribunal Act 1998. 5. Proof of service must be provided to the Tribunal before commencement of the hearing. If service is effected by electronic means, proof may be provided by acknowledgment of receipt by the person served. (SIGNED) Form Approved by rules committee 4/10/2000 fees revised 28032002
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