M & J H & J Downes; M Teague; I Miller; B Ball; W Warmington; D D Farthing; Vic Roads

[2006] VCAT 812

The Tribunal's Order in these proceedings dated 27 April 2006 is corrected pursuant to Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 as follows:

The order of the Tribunal is that the decision of the Responsible Authority is varied. In permit application TPA/33330 a permit is granted and directed to be issued for the land at 161-169 Jells Road, Wheelers Hill. The permit will allow the development and use of the land for a retirement village, with associated car parking, landscaping and access alterations to a road zone Category 1 in accordance with the endorsed plans and subject to the conditions set out in the Council's Notice of Decision dated 3 November 2005 with the following modifications:

1 The words "the plans submitted with the application" where appearing in the third sentence in the preamble to Condition 1 are to be replaced with the words "the plans described as Project Number 2005-612 by Edgard Pirrotta Architects Dwg. No.'s TP02, TP03, TP04, TP05, TP06, TP07, TP08, TP09, TP10, TP11, TP12, TP13, TP14, TP15 all Revision A and substituted at the VCAT hearing".

2 Condition 1(b) is to be deleted and replaced with the following words:

A reduction in the mass and bulk of the building's southern elevation by making the following modifications:

First Floor Plan

•

Deletion of Unit F3;

•

Increase setback of the western third of Unit F1/F2 (currently setback 8.9m) by a further 1.5m to 10.4m from the southern boundary (the affected part of F1/F2 may be pushed northwards into the corridor area of the now deleted F3).

•

The floor space occupied by Units S5, S7, S1/S4 and S2/S3 is to be modified by deleting these units and replacing them with a replica of the mirror image layout of Units S23, S25, S26 and S27 (resulting in a south boundary setback of 16m);

•

Deletion of Unit S28.

•

Unit T2 redesigned so that no part of the south wall is closer than 19m to the south boundary and 13.5m to the west boundary (measured to walls).

3 Condition 1(c) is to be deleted and replaced with the following words:

The height of privacy screens increased from 1.6m to 1.7m.

4 Condition 1(d) is to be modified by replacing the words "the six staff car park spaces adjacent to the Jells Road frontage" with the words "the two car spaces (STA4 and STA5) adjacent to the Jells Road frontage in favour additional tree planting (at least 2 trees)"

5 Condition 1(e) is to be deleted and replaced with the following words:

Two at-grade car spaces at the north-west end of the site are to be designated for staff use

6 Condition 6 - delete the words "to the satisfaction of the Responsible Authority" where appearing in the first sentence.

7 Condition 9 is to be modified by adding the words "except for collection immediately prior to collection time" at the end of the first sentence.

8 Condition 10 is to be modified by adding the words "without the further written consent of the responsible authority" at the end of this condition.

9 Condition 36 is to be deleted.

The Responsible Authority is directed to issue a modified permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

In addition paragraph 126 of the reasons is also corrected by substituting 10.4m for 9.4m in the second dot point.

1 By order dated 27 April 2006, the Tribunal directed the grant of a permit in Permit Application No TPA/33330 under the Monash Planning Scheme.

2 By letter dated 9 May 2006, Hansen Partnership Pty Ltd acting on behalf of Austcorp Group Pty Ltd (the permit applicant) drew the Tribunal's attention to what they suggested was a clerical error within the Tribunal's order, and submitted that the Order should be corrected.

3 The error identified is within dot point 2 of condition 1b) which states :

•

Increase setback of the western third of Unit F1/F2 (currently setback 8.9m) by a further 1.5m to 9.4m from the southern boundary (the affected part of F1/F2 may be pushed northwards into the corridor area of the now deleted F3).(emphasis added)

4 Clearly the dimension bolded above should be 10.4m as this was the intention of the Tribunal. That is, the proposed setback of 8.9m be increased by 1.5m to 10.4m.

5 Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 provides for the correction of orders where, among other things, there has been a clerical mistake.

6 We are satisfied that this has occurred here and find it appropriate to authorise a correction of the order.