In early 2012, members of Friends of Tootgarook Wetlands Reserve noticed a development company removing native vegetation and trucking fill on to a block in Elizabeth Avenue, Rosebud West. They were commencing subdivision works for the construction of a 41-unit housing development.

Image Himantopus Edithvale Wetlands by Frankzed on Flickr

In early 2012, members of Friends of Tootgarook Wetlands Reserve noticed a development company removing native vegetation and trucking fill on to a block in Elizabeth Avenue, Rosebud West. They were commencing subdivision works for the construction of a 41-unit housing development.

The problem was, they didn’t have a current planning permit.

Community and Friends of Tootgarook Wetlands Reserve member Cameron Brown ascertained this, alerted the Mornington Shire Council, and asked them to enforce this breach of the Mornington Shire Council Planning Scheme as a matter of urgency.

The Council refused. The developer continued to bring tonnes of fill on to the land. When the pumping of water from the site in to Chinamans Creek and the Tootgarook Weltands commenced, Brown and co were left with little choice but to file third party enforcement proceedings at the Victorian Civil and Administrative Tribunal (VCAT) to stop the works. Victorians are lucky enough to have an accessible jurisdiction like VCAT to take matters like this where lawyers are not necessarily needed and the costs are kept pretty low. (It still takes guts.)

The Mornington Shire Council sought to have Brown’s application at VCAT struck out. The contractors sped up the subdivision works, trucking in a total of 70,000 tonnes of fill to bring the site up above flood height and in pumping 85 million litres of water from it.

Right before Christmas VCAT member Dalia Cook vindicated the communities concerns, ordering a stop to all works on the site and in the absence of a valid permit, its remediation.

When local councils won’t stand up for communities, protect the environment, or indeed enforce their own laws, it is of paramount importance that every day people can demand this compliance.

There are proposed reforms on foot to hike up VCAT fees currently that will change all that. EDO reckons they will even further disadvantage community members and groups over developers and government bodies – and perhaps even prevent important cases like this one.

People like Cameron Brown, who seek to enforce planning laws at VCAT, would experience an application fee hike of $38.80 to $1007.40. This is just to get a matter listed. Then hearing fees of between around $370 and $1800 a day could be charged on top of that.  In the vast majority of cases, these costs can’t be recouped – even if the case is successful. The same applies to objectors to planning permits.

In these circumstances it is extremely likely that public interest environmental protection cases such as Brown v Mornington Peninsula SC & Ors would just not get filed in the first place.

(and read our briefing paper).