1. The application to amend Permit No P02/1197 is allowed.

2. The Responsible Authority is directed pursuant to Section 91(1) Planning and Environment Act 1987 to amend Permit No. P02/1197 to now read as follows (amendments underlined):

The permit allows:

Subdivision of the land in two stages to 41 lots in accordance with the plan of subdivision and associated earthworks and filling of the land.

1. Prior to the submission of a Plan of subdivision to the Responsible Authority for certification, an amended plan generally in accordance with the plan tabled at the hearing showing fill contours and 42 lots and signed by the Tribunal chair and dated 3 September 2003 but modified to show:

B. The designation of all drainage works required by Condition 3 of the Permit as part of stage one of the subdivision.

C. Appropriate drainage easements, in favour of the Mornington Peninsula Shire.

D. Appropriate water and sewerage easements, in favour of South East Water, for all existing or proposed South East water mains and sewers located within the land.

E. Appropriate easements satisfactory to United Energy, where easements have not been otherwise provided, or all existing United energy electric power lines required to service the lots on the endorsed plan and/or abutting land, for the purpose of "power line" as defined in the 7th schedule of the "SEC Act 1958" in favour of United Energy.

F. Areas set aside as suitable for reserves for electric substations required to service the lots for use by United Energy.

G. Easements and/or RCM/RIM sites which may be required by Telstra.

H. The building envelope for Lots 22, 23, 24, 25, 26, 27 and 28 must be setback at least 8 metres from the northern or common boundary of each lot with the existing residential lots in Cootamundra Avenue.

I. A wetland/retarding facility adjacent to Chinamans Creek as outlined in the Condina/Craigie Surface Water Management Report dated July 2002 and designated as a drainage reserve on the certified plan. The land containing this facility shall be shown as a municipal drainage reserve on the plan of subdivision and not as Lot 42.

J. All lots in the subdivision (excluding drainage reserves) must be filled to a 3.2 metre Australian Height Datum to cover a reasonable building envelope or such other flood level determined by the Responsible Authority.

K. This amended plan must be submitted and approved to the satisfaction of the Responsible Authority and when approved such plan will become the endorsed plan under this permit.

L. Installation of fencing to the drainage retardation and treatment facility to the satisfaction of the Responsible Authority.

2 Prior to the commencement of any works for the subdivision, the owner of the subject land must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987.

2.1.1 All works that are to vest in Council, such as roads, footpaths, street reserves and drain as must be designed, supervised and constructed in accordance with the current version of the document entitled "Mornington Peninsula Shire Quality Standards - Subdivisional works" as at the date of the issue of this permit and to the satisfaction of the Responsible Authority.

2.1.2 Insurance covering public liability during the period of construction of such works until Council issues an Acceptance of works Certificate and in addition, professional indemnity insurance for consultants involved in the design and supervision of the said works, all to the satisfaction of the Responsible Authority.

2.1.3 A 12 month pos-construction defects liability period for the said works secured by a bond for an amount not exceeding 5% of the value of such works for the whole of the subdivision to the satisfaction of the Responsible Authority.

2.2 Such agreement may provide that it will end in accordance with Section 177 of the Planning and Environment Act 1987 in relation to any particular stage of the subdivision (including the final stage_ upon the satisfactory completion of the said works in any such stage and the lodgement of a bond or other security to cover the defects liability period referred to in Condition 2.1.3 to the satisfaction of the Responsible Authority.

2.3 This agreement will not be registered on Title.

Note: the costs in preparation and registration of such agreement are to be met by the subdivider.

3 Prior to the commencement of any works on the site, a drainage and storm water management plan for all construction works in accordance with Best Practice must be submitted to and approved by the Responsible Authority. The Management Plan must address the treatment of storm water from the subject land to prevent polluted or sediment laden run off from discharging directly or indirectly into the drainage system in accordance with the recommendations of the pat Condina and Neil M Craigie report submitted in evidence to the Tribunal.

Prior to the commencement of any works on the site, drainage construction plans including plans for the construction, landscaping and fencing of the stormwater retardation and treatment facility, shall be submitted to the satisfaction of the Responsible Authority in accordance with the Drainage and Stormwater Management Plan (Plan Nos. 4833-DS01 Issue PC, 4833-DS02 Issue PC, 4833-DS03 Issue PC, 4833-DS04 Issues PC and 4833-DS05 Issue PB) approved by the Responsible Authority on 29 September 2006 and shall be signed by Mr Pat Condina and Mr Neil Craigie or otherwise certified to the satisfaction of the Responsible Authority as complying with the report submitted in evidence to the Tribunal. The drainage construction plans shall include provision for the following:

A. Carrying out the required filling including shaping the land so that overland water flows are directed to the drainage facility.

B. Stabilization with pasture of all fill and adequate treatments in place until grass has established.

C. construction of underground drainage to Lots 1 to 5.

D. Connection of underground drainage to Elizabeth Avenue for lot 14.

E. Temporary connection of lot 13 to Elizabeth Avenue,

F. Construction of the drainage treatment facility commencing with fencing along the sites entire eastern boundary along with construction including the wetlands and the implementation of landscaping.

G. Road and drainage plans for the internal road including longitudinal section and cross-sections of road and longitudinal section of drainage from lots 1 to 5 through to the outlet to the drainage treatment facility.

4 Prior to the certification of the Plan of subdivision hereby permitted, the Plan must be referred to South East Water, United Energy, Telstra and CFA in accordance with Section 8 of the Subdivision Act 1988.

5 There must be no obstructions within 1 metre of the edge of the formed width of roads and there must be 4 metres height clearance above all roads, to the satisfaction of the CFA.

6 The subdivider must provide 3 copies of water reticulation drawings to the CFA for approval.

7 There must be a hydrant within 120 metres from the outer edge of the building envelope to the satisfaction of the CFA.

8 Fire Hydrants must be clearly identified in accordance with the Fire Services Guideline - identification of street hydrants for fire fighting purposes, to the satisfaction of the CFA.

9 Prior to the commencement of works for the subdivision, a Site Management and Environment Plan must be submitted to an approved by the Responsible Authority. Such plan must have regards to the council's sustainability framework and must provide details of the following:

A. Hours of operation of all machinery including transportation of any fill to the site and to be Monday -Friday 7 am to 6 pm, Saturday 8 am to 4 pm, Sunday and Public Holidays - Nil.

B. A traffic plan indicating how vehicles will access the site.

D. Measures to control noise, dust and water runoff, including sediment control during construction to prevent any sediment entering Chinamans Creek.

E. Arrangements to ensure that no debris is deposited on any road while vehicles are travelling to and from the site.

F. Appropriate arrangements to ensure roads in the locality are not prejudiced or damaged by the movement of construction vehicles to and from the site. This is to be part of the management plan.

G. Measures to minimise any adverse impact on surrounding property owners.

H. The maximum number of trucks entering the site per day.

I. The fill must start on the site progressively from the rear of the Cootamundra Crescent house fence line and filling towards the swamp.

10 Prior to the commencement of works for the subdivision, the Site Management and Environment Plan must be approved to the satisfaction of the Responsible Authority.

11 Upon the commencement of works for the Subdivision, advice from a suitably qualified engineer on a monthly basis must be submitted to the Responsible Authority certifying that all the work has been undertaken in accordance with the Site Management and Environment Plan.

12 Except with the further permission of the Responsible Authority, filling of any part of the land must not occur unless all fill has been certified by the qualified engineer to the satisfaction of the Responsible Authority as being free of weeds, detritus or other material that is foreign and incompatible with the land's environment values.

13 Any entrance feature proposed for the subdivision must bot be located in a reserve or road reserve and must not cause any loss of safe sight distances.

14 The subdivider must provide to Council a complete set of original transparencies, as well as a set in electronic format, that shows the completed layout and construction details of the subdivision within one month after practical completion of the works.

15 Within three months after the issue of the Statement of Compliance for the subdivision and to the satisfaction of the Responsible Authority, the subdivider must provide:

A. Permanent surveys marks that have been levelled to Australian Height datum and registered with the Department of Survey and Mapping.

B. A copy of the plan that shows the above registered permanent survey marks.

16 Prior to the issue of a Statement of Compliance, road works, works, and drainage must be constructed for each stage in accordance with plans and specifications approved and to the satisfaction of the Responsible Authority and must include:

A. Fully sealed pavements to roll over type kerb and channel with agricultural drains installed behind all kerb and channel in accordance with Res Code.

B. All properties and roads being provided with full underground drainage to cater for a 5 year flow and the road system or overland flow paths with drainage reserves being used to convey the balance of a 100 year flow.

C. Outfall drainage from the subdivision being directed to an approved location via a gross pollutant trap.

D. Street name signs, regulatory sign posts and brackets being provided and installed.

E. Nature strips and properties where disturbed being surfaced with 75mm of approved loamy type top soil finished true to grade level and sown with grass.

F. Street trees being provided, together with stakes (2 metres x 75mm x 75mm), at 15 metres intervals or as directed by the Responsible Authority.

G. Appropriate service conduits with location marks in the kerb and channel being provided for each lot (or as required).

H. Street lighting in accordance with an approved plan with the type of poles and lights approved by Council prior to installation. If non-standard lighting is to be installed a maintenance fee of 10% of the cost of the poles and lights is to be paid to Council for future care and maintenance. A street light must also be provided at the intersection of Elizabeth Avenue and Corsair Ridge.

Stage 1 street lighting includes street lights in Elizabeth Avenue between Gannett Avenue and Corsair Ridge.

Stage 2 street lighting includes street lights in Corsair Ridge.

I. Standard fire plug indicators (with blue reflectors fitted to both sides) and blue road reflectors being provided and installed.

J. A 1.4 metre wide concrete footpath on the 1 side of Corsair Ridge being provided, with the extreme outer edge 1.7 metres from the building line.

K. Site levels and finished ground levels of all proposed lots with detailed and graduated finished site levels being provided for the area with 10 metres of the common boundary of the existing lots in Cootamundra Avenue to the north of the site. All site levels must be based on the Australian Height Datum and be nominated by a licensed land surveyor.

L. Lots 1, 22, 23, 24, 25, 26, 27 and 28 within this subdivision must be filled with clean material to a minimum of 3.2 metres Australian Height Datum with positive drainage to Chinamans Creek and away from all existing residential lots on all adjoining land.

M. The location of any fill on the land and its depth being nominated on the plan.

N. Provision for drainage works on the land as follows:

Carrying out the required filling including shaping the land so that overland water flows are directed to the drainage facility.

Stabilization with pasture of all fill and adequate treatments in place until grass has established.

Construction of underground drainage to Lots 1 to 5.

Connection of underground drainage to Elizabeth Avenue for lot 14.

Temporary connection of lot 13 to Elizabeth Avenue.

Construction of the drainage treatment facility including the wetlands, fencing and the implementation of landscaping.

17 Prior to the issue of a Statement of Compliance, the subdivider must pay to the Responsible Authority, appropriate fees for plan checking and surveillance (the surveillance fee will not be more than 2.5% of the cost of works taken over by the Council for future care and maintenance).

18 Prior to the issue of a Statement of Compliance, Council may accept a Bank Guarantee/Bond for the completion of road works, works, drainage and landscaping as detailed in Condition 16 above and Condition 19 below.

19 Prior to the issue of a Statement of Compliance, a landscape plan for Elizabeth Avenue and Corsair Ridge must be submitted incorporating:

A. A schedule of all proposed trees, shrubs and ground cover, which will include the location and size at maturity of all plants, the botanical manes of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified. At least 80% of the species must be indigenous to the area.

This plan must be submitted and approved to the satisfaction of the Responsible Authority and when approved such plan will become the endorsed landscape plan under this permit.

20 Prior to the issue of a Statement of Compliance, the subdivider must carry out the landscaping shown on the plan requested in Condition 19 above to the satisfaction of the Responsible authority. The subdivider must then care for and maintain (including replacement) all of the landscaping, supporting stakes and ties, for a period of 12 months after completion, with any dead or diseased trees and shrubs being replaced as soon as possible, to the satisfaction of the Responsible Authority.

21 Prior to the issue of a Statement of Compliance, the subdivider must enter into an agreement with South East Water Limited for the provision of reticulated water and reticulated sewerage to all lots in the subdivision. The subdivider must fulfil all requirements to the satisfaction of South East Water.

22 Prior to the issue of a Statement of Compliance, the subdivider must enter into an agreement with United Energy in respect to the supply of underground electricity to each lot.

23 Prior to the issue of a Statement of Compliance, the subdivider must enter into an agreement with United Energy. This agreement must provide for the rearrangement of the points of supply to any existing installations affected by any private electric power line which would cross a boundary created by a the subdivision, or by such other means as may be agreed by United Energy.

24 Prior to the issue of a Statement of Compliance and to the satisfaction of United Energy, the subdivider must:

A. Obtain for the use of United Energy any other easement required to service the lots.

B. Execute lease documents for a period of 30 years at a nominal rental with a right to extend the lease for a further 30 years for any electrical substations and for associated power lines and carriageway as required.

United Energy requires that such leases are to be noted on the Title by way of a caveat prior to registration of the Plan of Subdivision.

25 Prior to the issue of a Statement of Compliance, the subdivider must carry out works to each lot within the subdivision, to the satisfaction of Telstra.

26 Prior to the issue of a Statement of Compliance, the subdivider must pay to Telstra, the cost of any extension or alterations to the network or plan of Telstra, if necessitated by the proposed subdivision.

27 Prior to the issue of a Statement of Compliance, the subdivider shall at his expense erect an appropriate fence along the eastern boundary of the land to the satisfaction of the Responsible Authority.

28 Prior to the issue of a Statement of Compliance, the owner of the land must enter into an agreement with the Responsible authority, pursuant to Section 173 of the Planning and Environment Act 1987. This agreement must be registered by the owner pursuant to Section 181 of the Planning and environment Act 1987 on the Title of the subject land prior to approval of this subdivision.

The agreement must provide for:

A. Dwellings on Lots 22, 23, 24, 25, 26, 27 and 28 shall be single storey.

B. No additional fill other than as approved by the Responsible Authority being placed on any lot.

C. No more than 40% of the site area of any lot to be covered by buildings (excluding driveways, terraces, etc).

Note: The costs in preparation and registration of such agreement are to be met by the subdivider and should be paid prior to the registration of the agreement.

29 Where the subdivision is to be developed in stages, the time specified for the commencement of the first stage is two years from the date of the amendment of this is permit. The time specified for the commencement of any subsequent stage is three years from the date of the amendment of this permit and the time specified for the completion of each stage is two years from the date of its commencement. The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

3. The Responsible Authority is directed to give notice of this amendment of the permit pursuant to Section 92 Planning and Environment Act 1987.

Ms L Sahhar, Town Planner, Nilsson, Noes & Holmes Surveyors Pty Ltd

Mr H Gascoigne, Ms J Bould, Mr N McKinlay, Ms I Preston in person

1 The Tribunal granted a permit in 2003 for the subdivision of land at 85 Elizabeth Avenue, Rosebud West into 41 lots in accordance with the plan of subdivision and associated earthworks and filling of the land.

2 At that time, the application for permit requested it be for a two stage subdivision. The staging of the subdivision does not appear to have been discussed at the hearing before the Tribunal and the permit that was granted does not refer to the staging of the subdivision.

3 The applicant seeks an amendment to the permit (P02/1197) to allow for the subdivision to be carried out in two stages and relies upon section 87 (1) (c) Planning and Environment Act 1987 that there has been a material mistake in the grant of the permit.

4 The Responsible Authority and the resident objectors were initially opposed to the amendment to allow the staging of the subdivision expressing concerns that if this occurred the required drainage would not be properly carried out and this would have an impact not only on the adjoining properties but also on the nearby Chinamans Creek.

5 The land is prone to flooding and originally formed part of the Tootgarook Wetlands, a natural drainage basin that stores water from the Drum Drum Alloc Creek Catchment and the Chinamans Creek Catchment. The Tootgarook swamp borders the south-west of the land.

6 It became evident after hearing the submissions by Ms Sahhar on behalf of the applicant that the applicant had no intention of foregoing the permit requirements relating to the establishment of drainage infrastructure for the land until some time in the future. Rather it was made clear by Ms Sahhar that the applicant was prepared to provide the required drainage infrastructure at stage 1 of the subdivision. This drainage infrastructure included the establishment of a drainage treatment facility on what was previously lot 42.

7 The Responsible Authority provided draft amended permit conditions for consideration if it was consider the permit could be amended as requested.

8 The applicant did not object to the draft amended conditions and the resident objectors were satisfied that their concerns regarding the drainage infrastructure being established early would still be carried out.

9 Following consideration of the draft amended permit conditions and discussions with the parties the Tribunal is of the view that the permit can be amended as requested to allow for a two stage subdivision.

10 Given the original permit application requested the staging of the subdivision and given the endorsement on 26 June 2006 by the Responsible Authority of the Contour Fill Plan and Plan of Subdivision which provides for the development of the land into two stages it is considered that there was a material mistake in the grant of the permit and the permit should be amended to allow the subdivision in two stages subject to amended conditions. In allowing the amendment I am satisfied that the amended conditions ensure the concerns of the Responsible Authority and resident objectors have been appropriately addressed.