VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1092/2023
	
CATCHWORDS	
Section 114(1) of the Planning and Environment Act 1987 (Vic); application for enforcement orders; Port Phillip Planning Scheme; failure to obtain permit for fence extension in Beacon Cove Precinct.

Applicant 	Port Phillip City Council	
Respondent	Anna Hye-Jee Rankin	

SUBJECT LAND	148 Beach Street
PORT MELBOURNE  VIC  3207	
HEARING TYPE	Practice Day Hearing	

DATE OF HEARING	23 November 2023	
DATE OF ORDER	23 November 2023	
CITATION	Port Phillip CC v Rankin [2023] VCAT 1296	
Order
Enforcement order allowed
1	The application for an enforcement order pursuant to section 114 of the Planning and Environment Act 1987 (Vic) is allowed.
2	The enforcement order is in the form attached to this order as Appendix A.
3	The applicant must serve a copy of this order on the owner and occupier of the land, and any other person against whom the order is made, pursuant to section 140 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
Reimbursement of fees
4	Pursuant to section 115B of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), by 31 January 2024 the respondent must pay to the responsible authority the sum of $1,335.60 in reimbursement of the application fee paid by the responsible authority.

S P Djohan
Acting Senior Member	

Appearances

For applicant	Peter Healy, Planning Compliance Officer, Port Phillip City Council.	
For respondent	No appearance.	

Reasons 
Background
1	This the second practice day hearing conducted in this proceeding. The first practice day hearing was conducted on 20 October 2023. 
2	The respondent did not appear at the first practice day hearing. To date, the respondent has not filed a statement of grounds in response to the application for enforcement orders under s.114(1) of the Planning and Environment Act 1987 (Vic) by Port Phillip City Council. 
3	The Tribunal’s records show that the respondent has made no contact at all with the Tribunal in response to the enforcement order application.
4	Having not received any statement of grounds from the applicant by the conduct of the first practice day hearing, I adjourned the practice day hearing and made orders to the following effect – 
a.	The application be listed for a further practice day hearing on 23 November 2023.
b.	Council was required to file its evidence and associated material in support of its application by 3 November 2023.
c.	A further opportunity for the respondent to lodge a statement of grounds by 16 November 2023.
5	At the first practice day hearing, I also order that if the respondent did not file a statement of grounds by 16 November 2023, the Tribunal may proceed to hear and determine the enforcement application without further reference to them.
6	Since the first practice day hearing, Council has filed its evidence and associated material in compliance with my previous orders.
7	I am satisfied that at all relevant times, Council has served the respondent with the enforcement application and the evidence that is relies on in this proceeding.
8	Mr Healy informed me that he attended at the subject land on 1 November 2023 and although he did not speak to the respondent, he left a copy of the Tribunal’s order of 20 October 2023 together with copies of the affidavit material intended to be relied upon at today’s hearing.
9	I am also satisfied that the respondent has received all previous orders of the Tribunal as a result of communications from the Tribunal’s registry.
10	In the circumstances, it is appropriate for me to determine Council’s enforcement application as the respondent’s repeated failure to attend before the Tribunal without reasonable excuse should not further frustrate the determination of the enforcement application.
Nature of the alleged breach
11	The facts and circumstances relied upon by Council are set out in the affidavits of Peter Healy, Planning Compliance Officer and Joachim von der Putten, Planning Compliance Officer (both affirmed on 1 November 2023). Following are material facts taken from that affidavit evidence.
12	On 21 September 2022, a member of the public raised with Council a concern that a fence had been constructed atop of an existing brickwork front fence at 148 Beach Street, Port Melbourne (‘fence extension’).
13	On 10 August 2022, Mr Healy commenced a desktop investigation of matters relevant to the fence extension, including consideration of the relevant planning controls.
14	Under the Port Phillip Planning Scheme (‘planning scheme’), the subject land is – 
a.	included in the Neighbourhood Residential Zone (clause 32.09);
b.	subject to the Neighbourhood Character Overlay and requires a permit a permit for amongst other things for the construction of fences under clause 43.05-2 of the planning scheme;
c.	is included in the Beacon Cover Residential Precinct D under Schedule 4 to the Neighbourhood Character Overlay;
d.	is subject to the Design and Development Overlay – Schedule 19 – Fences in the Beacon Cove Low Rise Residential Precinct.
15	Schedule 4 of the Neighbourhood Character Overlay describes Beacon Cove as a planned residential community in Port Melbourne that displays a consistency in building forms which creates a unique and clearly identifiable neighbourhood character. This neighbourhood is defined by streetscapes with no or low front fences, key boulevards, views and vistas, and a relationship to the waterfront and piers of Port Melbourne.
16	The design objectives of Schedule 19 of the Design and Development Overlay are – 
To preserve and enhance the expansive and uninterrupted landscape character of the area by minimising the development of front fencing.
To ensure front fences, where permitted, are in keeping with existing streetscape character.
To encourage passive surveillance of streets and parks.
To provide a safe, efficient and attractive local streetscape.
17	Under Schedule 19, a permit is required to construct any fence fronting a street (including fencing adjoining all streets on corner lots) or forward of the building line. Fences that are permitted should match those already in the street.
18	In September 2021, a retrospective application was made by the respondent seeking permission for the metallic blade extension atop of an existing fence fronting the subject land. That application lapsed on 20 September 2022.
19	Following the lapsing of the September 2021 restrospective application, two letters requiring compliance with the planning scheme by removing the fence extension were sent by Council to the respondent on – 
a.	19 June 2023; and
b.	18 July 2023.
20	Both letters informed the respondent that should the fence extension not be removed by the respective nominated dates, Council may commence legal action against the respondent seeking an enforcement order from the Tribunal for the removal of the fence extension.
21	No response from the respondent was received by Council to either letter.
22	By letter dated 16 August 2023, Council offered the respondent an opportunity to show cause why Council should not commence enforcement proceedings in the Tribunal against the respondent for failure to obtain a permit to erect fence extension. No response has been received to that opportunity.
23	At the recommenced practice day hearing on 23 November 2023, Mr Healy informed me that he undertook an inspection of the subject land on 22 November 2023 and that the fence extension had not been removed.
24	After considering the relevant provisions of the planning scheme, I am satisfied that –
a.	there exists a black metal blade extension atop an existing rendered fence (that is, the fence extension referred to earlier in these reasons) at the frontage of the subject land;
b.	a permit is required under Schedule 19 of the Design and Development Overlay for the fence extension and that such a permit has not been obtained; and
c.	the respondent has contravened the Port Phillip Planning Scheme. 
Reimbursement of application fee
25	Council seeks reimbursement of the application fee paid to commence this proceeding (being $1,335.60).
26	Section 115B(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) confers on the Tribunal the power to order that a party reimburse any feed paid by another party, within a specified time.
27	Section 115C(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides that a party who has successfully succeeded against another party in proceeding to which this section applies is entitled to an order under s.115B that the other party reimburse the successful party the whole of any fees paid by the successful party.
28	A proceeding brought under s.114 of the P&E Act is a proceeding to which s.115C applies (see S.115C(1)(d)).
29	In the circumstances, I am satisfied that Council is entitled to the presumption conferred under s.115C(2) that any fee paid by it in these proceedings should be reimbursed by the respondent. I so order.
Conclusion
30	In the circumstances, I am satisfied that – 
a.	the respondent has been provided with adequate opportunity to be heard in response to Council’s application for an enforcement order under s.114(1) of the P&E Act but has no availed herself of the opportunity to be heard;
b.	for the purposes of s.116 of the P&E Act, no objection to Council’s application has been received; and
c.	the erection of the fence extension constitutes development has contravened the Port Phillip Planning Scheme;
d.	an enforcement order in the terms set out in Appendix A be made requiring the respondent to remove the fence extension;
e.	the respondent should reimburse Council for the application fee paid by Council in this proceeding.

S P Djohan
Acting Senior Member	

Appendix A

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1092/2023

Applicant 	Port Phillip City Council	
Respondent	Anna Hye-Jee Rankin	

SUBJECT LAND	148 Beach Street
PORT MELBOURNE  VIC  3207	
HEARING TYPE	Practice Day Hearing	

DATE OF HEARING	23 November 2023	
DATE OF ORDER	23 November 2023	
ENFORcEMENT Order
NATURE OF CONTRAVENTION	Extension of fence on the frontage of 148 Beach Street, Port Melbourne, Victoria, 3207 without a permit contrary to clause 2 of Schedule 19 to the Design and Development Overlay of the Port Phillip Planning Scheme.	

1.	By no later than 31 January 2024 (or a later date agreed upon in writing by the responsible authority), the respondent must remove the black metal blade fence extension attached to the rendered brick front fence at 148 Beach Street, Port Melbourne, Victoria, 3207.

S P Djohan
Acting Senior Member