The request is allowed and the condition 1 shall be deleted as detailed in the Notice of Decision to Grant a Permit dated 31st October 2005.

The request is disallowed and the Responsible Authority is directed to issue a permit with conditions 2-8 as listed in the Notice of Decision to Grant a Permit dated 31st October 2005 with additions or alterations as follows: -

The lodged application plans shall be amended to include a notation for a maximum of 100 students. When amended, the Responsible Authority shall endorse them for the "educational and recreational centre" use in accordance with this permit.

(ii) Amend Condition 4 by adding 4(c) and 4(d) to read:

(c) Clear vegetation on the inner side of the bend north of the entrance to 'Tye Estate' to improve sightlines.

(d) Ensure that multi passenger transfer vehicles operated by the school approach the property and exit from the school south to Mt Eliza Road.

(iii) Amend Condition 5(a) by deleting the words after 'disposal of' and replace with the following "effluent in accordance with the 'Code of Practice for Small Wastewater Treatment Plants' (June 2000)".

Mr Matthew Townsend of counsel instructed by Hunt and Hunt, Solicitors who called the following witnesses:

Mr Matthew Townsend of counsel who called the above witnesses.

1 These applications are brought under the following sections of the Planning and Environment Act 1987 -

P3041/2005 - s.82 to review a decision of the Responsible Authority to grant a permit for a school use.

P3124/2005 - s.80 to review a condition in the Notice of Decision to grant a permit dated 31st October 2005.

2 The subject land as described by Mr Chessell is:

The subject site is situated approximately 5 kilometres southwest of the township of Romsey, on the northern side of Kerrie Road. It lies on the foothills of Mount Macedon and as a consequence is characterised by its undulating topography.

The site remains dominated by native bushland, with cleared areas amounting to approximately 10% of the site. It is of considerable size, covering some 440 hectares (and contained within 15 separate titles).

At present, the subject site is harnessed as a venue for creative writing camps, run by Mr Marsden, being the site of holiday and recreation facilities for students (who attend principally from Melbourne).

It is our understanding that each group or school uses the site for short periods of time (between 3-8 days), and that is a common that the students reside on the site throughout the period of each "camp". At present, we understand that it is common for there to be approximately 40 children at the site at any one time (though this number is subject to variation).

Whilst it would seem likely that each group or school would harness the facilities contained within the site in different ways, it is evident that the site is commonly used for each of the following activities:

Prior to the purchase of the subject site by Mr Marsden, the site had been owned and operated by the Blind and Deaf Institute (who were bequeathed the site by the late Mr and Mrs Tye in 1948) as holiday accommodation for their members.

There presently exists significant building and infrastructure on site, from which the camps are presently conducted. The majority of this development dates back to works undertaken by the Blind and Deaf Institute in the early 1980s.

The buildings are located close to the site's frontage to Kerrie Road, and is constituted by:

* an amenities block (with a large kitchen and eating area);

3 The proposal also from Mr Chessell's submission is:

The proposal contemplates the use of the subject site for the purposes of a school (catering for prep- year 10) to be housed within the existing facilities on site. The permission granted does not extend to any works being undertaken on site.

The proposal is characterised by the following features:

* the school is to operate as a day school (between the normal school hours of 8:30 am and 3:30 pm (extending to 5:00 pm with after-school activities));

* it is not proposed that students reside on site;

* students will arrive by private car or minibus (with a maximum capacity of 25 seats provided and operated by the school) which would enter the property from the Mt Eliza end of Kerrie Road;

* the student body would come mainly from in and around Romsey (with a small number of students coming from Melbourne);

* the school will provide a structured curriculum in accordance with the requirements of the Victorian Curriculum and Assessment Authority, but will also incorporate considerable outdoor activities such as bush walking, nature appreciation, gardening and sporting activities; and

* the school is proposed to open in January 31, 2006 (subject to the outcome of the present proceedings).

4 The subject land and surrounding land is generally zoned Environmental Rural (Schedule 1) under the Macedon Ranges Planning Scheme and the following overlay controls apply -

* Significant Landscape Overlay (Schedule 1)

* Environmental Significance Overlay (Schedule 5) in part.

* Wildfire Management Overlay - in part.

A permit is required for the use proposed.

Reasons for Request

5 The reasons given for the request under P3041/2005 is:

1. A private school is a commercial use.

2. Increased effluent.

3. In a water catchment area for Romsey.

4. Road access.

5 A declared "Land for Wildlife".

6 The condition appealed and reason for that request under P3104/2005 are:

1. Prior to the commencement of the school hereby approved the owner of the tenement shall enter into an agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987. The applicant must pay the reasonable costs of the preparation, execution and registration of the Section 173 agreement. The agreement must provide that:

(a) The number of pupils attending the school at any one time shall not exceed 60 pupils.

Reason for request

I wish to appeal against condition 1 that requires that I enter into a section 173 agreement to restrict the number of students and that all existing titles remain in one ownership. These conditions are inappropriate having regard to: the size of the land; the facilities situated upon it; and its existing use.

Inspection

7 The Tribunal considered it necessary to inspect the area and access roads prior to reaching a decision in view of the varying conditions of the subject land, wastewater treatment plant and the access road from Mt Eliza Road to the gate and the internal access.

This was carried out on Tuesday afternoon 20th December 2005.

8 The subject land has been in use for years for various activities by the Blind and Deaf Institute following a bequest to them from the late Tye estate in 1948.

9 The land is in 15 titles and it is stated that only approx 10% is not dense bushland.

10 True, the site is a magnificent parcel of land as noted on the inspection and maintained by the present owner, Mr Marsden in excellent condition around the portion of the site containing buildings and used as a conference centre and weekend study workshops.

11 The proposal is a more intense use and the Objectors considered the proposal a private commercial use with poor road access together with worry of polluting the nearby creek with a water catchment with increased effluent and affecting local wildlife in a 'Declared Land for Wildlife Programme' area.

12 It was the objectors' concerns that required the Tribunal to visit the site and area to assess the situation first hand. As stated at the hearing, photographs and maps are excellent for the hearing, but at times don't tell the full story of the points discussed.

13 The Objectors covered all aspects of their concerns clearly and well and the Tribunal understood their issues.

14 The issues in summary are an intensification of use of the buildings and land, potential pollution from noise and the waste water plant and damage to the environment on this declared 'Land for Wildlife' area.

15 A verbal decision was given on Wednesday 21st December 2005 following the inspection and detailed consideration of all submissions, because of the need for a prompt decision in this instance with the new school year only a short time away.

16 Mr Townsend through his witness Mr Banon expressed a potential existing use right that would allow the school to commence in 2006 regardless of a new permit, however this avenue was not pursued at the hearing as an option.

17 The Tribunal studies the relevant sections of the planning scheme that were referred to by Mr Chessell and considered Amendment C21 that was adopted by the Responsible Authority on the 24th November 2004 and left the council's office in February 2005 for approval.

18 The current scheme is clear in that subject to permit the proposed use is permitted in this zone. This is not so with the proposed amendment that is suggesting a change of zoning to 'Rural Conservation' where the proposed use is prohibited. It is evident from the inspection that the property is well maintained and virtually used for conservation with the 'Land for Wildlife' cover on the overall property.

19 It was suggested by Mr Chessell for the Responsible Authority that in view of the existing use and the period of time with the Minister up to this time that the issue of a permit was warranted.

20 The Objectors considered the amendment well advanced and considered the Responsible Authority support incredible under the circumstances.

21 The Tribunal having heard all submissions on Amendment C21 and noting the long delay in the Minister's approval, believes that there could be doubts and uncertainties and that the amendment should not be considered nor a decision based on it that would see this use prohibited.

22 Having covered the amendment, the Tribunal must now turn to the issues listed in 14 above. The matters are related as the intensification of use to five school days each week plus possible weekend courses or conventions, etc, affects of the road use, possible pollution and in fact all of the Objector's concerns.

23 The Tribunal with a municipal engineering background and wastewater experience as a sewerage authority engineer is satisfied that the road system as noted on the inspection is adequate for the additional use without sealing sections as suggested by Mr Chessell on behalf of the Responsible Authority.

24 The gravel road along Kerrie Road may need some additional grading each year, however the surface and road shape has adequate capacity for the additional cars and small school buses. It was noted that the southern portion is 40kph around the subject land and a suggestion was put to require all uses operated by the school to enter and exit along the southern section of the road to Mr Eliza Road. This is a good idea and will be included as a condition.

25 So far as the on-site waste treatment plant is concerned, there is adequate capacity as submitted and the Tribunal does not see any possibility of pollution of the creek through the lower corner of the property or beyond. In addition there is a required monitoring programme included in the suggested conditions that will alert the authorities if the plant is not performing correctly.

26 As stated earlier the subject land is well cared for and the Tribunal cannot see any way that the environment will be damaged by the proposed use sought. The Applicant is conscious of the area and the need for maintaining its natural state and this is borne out by the condition of the property now.

27 The Objectors expressed concerns that appear unfounded and not supported by evidence that could or should require the Tribunal to allow their request. The request is disallowed and the Responsible Authority will be directed to issue a permit.

28 In relation to the condition appeal requesting the removal of condition 1(a) regarding a limiting of school numbers to 60 students and that condition protected by a Section 173 agreement which would appear on the title of the land, the Tribunal comments on this aspect now that the use has been decided.

29 The number of students was originally nominated as 60 in the application and that was where the condition number originated. However in evidence, Mr Marsden stated that there had been encouraging enquiries that suggested that number may be too low and this was passed onto the council assessing officer at times during the consideration process.

30 Evidence was given that the school buildings and wastewater treatment plant could cater for up to 143 persons and the Tribunal accepts that figure after hearing from the witnesses and noting facilities on the inspection.

31 Dr Thorne raised as an issue that no notice had been given of any increase in student numbers prior to the hearing and that the matter should not even be considered.

32 The condition appeal did refer to the limiting of numbers and the s173 agreement which stated "restrict the numbers of students".

33 The Tribunal accepts that it was intended to apply to delete that condition and allow an increase in student numbers and that the original number of 60 was an arbitory number to apply for the use.

34 In considering the conditions appeal request, the Tribunal must look at the capacity of the site to accept more than the 60 students and to consider what problems may exist by increasing that number.

35 The site capacity is satisfactory as commented above and the Tribunal sees no difference in allowing 60 or 100 students plus staff when considering the capacity of the road system and the respect by the owner that is shown and evident for the environment on this site.

36 The use of a s173 agreement is not seen as appropriate or necessary in this instance as a figure specifying the number of students in conditions is sufficient to control the site use.

37 The Tribunal accepts that conditions in a permit are accepted and adhered to. There is a mechanism if they are not. In this case, the Tribunal believes that the site can take 100 students plus teachers without any detriment either on or off site and that the number of 100 in a condition is appropriate to control numbers on the site.

38 The site is appropriate for 100 students and there are no reasons on planning grounds to refuse the use. The Objector request is disallowed and the condition request allowed.