Casey v Cleeland [2001] VCAT 821

Planning List; Casey Planning Scheme; Applications for enforcement order under s.114 Planning and Environment Act 1987; cross- application for amendment of a permit under s.87 of the Planning and Environment Act 1987; Low Density Residential Zone; construction of second dwelling; departures from endorsed plans; role of Vic Code 1.

In Application no. 2000/28450 the Tribunal orders as follows:

1. The Respondents, being the owners of 46 Churchill Park Drive, Lysterfield South (the subject land), shall within 28 days of the date of this order submit plans ("the modified plans") to the Applicant (Casey City Council) as responsible authority under the Casey Planning Scheme in accordance with the conditions of the amended Permit no. 113/98 to be issued pursuant to the order of the Tribunal in Application no. 2000/63984.

2. Within three months from the date of endorsement of the modified plans, the respondents must carry out and complete the development of the new dwelling on the subject land in accordance with the modified plans and all relevant permit conditions.

3. The Applicant must immediately serve copies of this Order on the Respondents.

4. Pursuant to Section 117 of the Planning and Environment Act 1987 the Tribunal specifies that the subject land has been developed in contravention of the relevant planning permit as follows:

"Construction of the permitted dwelling otherwise than in accordance with the plans endorsed under Permit no. 113/98 issued by the Casey City Council, and contrary to Condition 1 Permit no. 113/98."

In Application no. 2000/63984 by G S Cleeland and S J Cleeland for amendment of Permit no. 113/98 the Tribunal orders as follows:

The following new conditions shall be inserted in Permit no. 113/98:

1A The plans endorsed under this permit shall be amended. The following modified plans shall be submitted to the responsible authority for approval pursuant to the terms of this Order, and once approved, shall become the endorsed plans under this permit:

* Site plan ref. no. 97025.2 shall be modified as follows:

? The ground levels shown for the new dwelling shall be deleted.

? The ground floor level and first floor level shall be shown as RL 7.74 and 6.91 metres respectively.

? A new lower floor level shall be shown as RL 6.83.

* The verandah shown on the eastern side of the new dwelling on the first floor plan ref. 97025.1B "Section 87 plan" shall be modified as follows:

? The line representing the eastern wall shall be extended north and south until it intersects with the outer edge of the verandah. All parts of the verandah east of that line shall be deleted

* Plan ref. 97025.3C "Section 87 plan" shall be modified as follows:

? The verandah as shown on the elevations to reflect the required deletions on plan ref. 97025.1B "Section 87 plan".

? Doors onto the part of the verandah which is to be deleted shall also be deleted.

? Section AA shall be amended to conform to the required deletions.

? All glazing on the east and south-east elevations shall be shown as commencing at a height of not less than 1 metre above finished floor level.

? The eastern deck on the lower level shall be cut back at its northern end to a point found by northward extension of the eastern wall.

? the outer edge of the eastern deck of the new dwelling (elevation 7), and its modified eastern end, to be screened with a timber trellis to a minimum height of 1.6 metres.

1B The owner shall submit a landscape plan to the responsible authority in triplicate for the area between the permitted dwelling and the eastern boundary fence. The plan shall include details of proposed species, mature heights and proposed heights at planting. When approved, this plan shall form part of the plans endorsed under this Permit.

1C. The landscape plan identified in Condition 1B must be implemented to the satisfaction of the responsible authority prior to issue of a Certificate of Compliance for any dwelling.

1D. The landscaping must be maintained in accordance with the landscape plan, including any related schedule, to the satisfaction of the responsible authority .

5. The trellis structure required to provide privacy to an adjoining property to be shown on the modified plans must be continuously maintained during occupation of the permitted dwelling, and not be removed. If it is damaged, it must be replaced immediately.

The costs of both Applications are reserved. Any party seeking an order for costs must within seven days file with the Tribunal and serve on any party against whom costs are sought an application setting out its reasons for the application and the basis for assessment which it contends is appropriate.

Mr R Appudurai of Counsel, instructed by Maddock Lonie & Chisholm, Lawyers, appeared on behalf of the responsible authority (Council).

Mr J McCaffrey, planning consultant, appeared on behalf of Mr and Mrs Calderwood.

Mr C Taylor of Russell Kennedy solicitors, appeared on behalf of Mr and Mrs Cleeland.

1. This was the hearing of three related Applications, each commenced by a different party, but all arising out of the construction of a detached dwelling at 46 Churchill Park Drive, Lysterfield South ("the subject land").

2. Application no. 2000/28450 was commenced by Casey City Council ("the Council"), as responsible authority under the Casey Planning Scheme, on 13 April 2000 against George Sinclair Cleeland and Susan Joy Cleeland ("the owners"). It is made under Section 114 of the Planning and Environment Act 1987 ("the Act"), and seeks enforcement orders that would require the owners to modify the buildings and works at the subject land so as to comply with Permit no. 113/98 ("the permit") and the plans endorsed under the permit.

3. Although Mrs Cleeland is a proper respondent as a co-owner of the subject land, she took no active part in the proceeding, and nothing was alleged against her personally. Mr Cleeland acted as builder, as well as owner.

4. Originally the Application had included an alternative order, that the owners should modify the buildings and works to comply with the performance measures of Element E2 of the Victorian Code for Residential Development - Subdivision and Single Dwellings, April 1992 ("Vic Code 1"). Mr Appudurai, who appeared on behalf of the Council, acknowledged in the course of the hearing that this Application was not directed to enforcement of standards where no permit was required. It is directed to the owners' conduct under the permit. The alternative remedy was abandoned.

5. Application no.2000/31643 was commenced by Mr D and Mrs J Calderwood, seeking a declaration under Section 149B of the Act. This Application has been determined by Mrs Bruce alone, and is the subject of a separate decision.

6. Application no. 2000/63984 was commenced under Section 87 of the Planning and Environment Act 1987 by the owners on 9 August 2000. It sought an order amending the permit by the substitution of plans showing the building at the subject land as constructed, and to be constructed (as it was not finished).

7. All three Applications were adjourned to be heard together on 2 October 2000, in the circumstances described in the Directions issued as a result of that hearing. Directions given (dated 3 October 2000) included a direction that an Applicant in any of the three Applications would also be heard in the other Applications, provided a statement of grounds was filed and served. Statements of evidence were also required to be filed and served prior to the hearing. Evidence in one Application was treated as evidence in all during the consolidated hearing. By agreement, the Council's case was presented first with respect to all the Applications, and Mr Taylor presented the owners' case last.

8. All the parties called witnesses. On behalf of the Calderwoods, Mr McCaffrey, who is himself a planning consultant, called Mr Calderwood. The other parties' witnesses were:

Ms T Coupe, Team Leader Statutory Planning, Casey City Council (affidavit only).

Mr G McDonald, Planning Investigations Officer, Casey City Council.

Ms J Houguet, Manager Planning, Casey City Council.

Andrew J Smith, Licensed Surveyor, of Kirkpatrick & Webber

Gerald Hanscamp, architect, or Forestgate Design Pty Ltd.

Mr N Petris of Nicholas Petris & Associates Pty Ltd

9. Apart from Ms Coupe's evidence, the parties each had the opportunity to cross-examine each other's witnesses. In the case of Ms Coupe's evidence, much of the material described the history of the permit application and the Council's Application, and was common to both Applicant and Respondents in the enforcement order application. Other Council officers had access to the files and were generally able to answer such questions as arose. The evidence of the Council's surveyor formed the basis of Ms Coupe's calculations of wall height, which were in any event superseded by Ms Houguet's list of differences between the endorsed plans and the as built structure.

10. The Tribunal also conducted an inspection of both the subject land and the Calderwoods' property in the presence of representatives of the parties, and also inspected the locality.

Nature of Application under Section 114

11. The responsible authority or any person may apply under Section 114 of the Act for an enforcement order against any person specified in Section 114(3), if a use or development of land contravenes or, unless prevented, will contravene (among other things) the Planning Scheme or a condition of permit.

12. Section 114(3) states than an enforcement order may be made against (among others) the owner and occupier of the land.

13. If the persons against whom an enforcement order application is brought object to the making of the order sought, the Tribunal must give the persons set out in Section 117 a reasonable opportunity to be heard with respect to the application. As well as the responsible authority and the Respondents, this includes any person whom the Tribunal considers has been or may be adversely affected by the contravention.

14. The Tribunal may then (under Section 117(2)) either make any enforcement order it thinks fit in accordance with Section 119, or reject the application. Section 119 sets out what an enforcement order may contain, and also the information that it must contain. The powers contained in Section 119 include the power to direct the persons against whom the enforcement order is made -

(i) to stop the use or development within a specified period;

(iv) to do specified things within a specified period--

(A) to restore the land as nearly as practicable to its condition immediately before the use or development started or to any condition specified in the order or to any other condition to the satisfaction of the responsible authority, a Minister, public authority, municipal council, referral authority or other person or body specified in the Order; or

(B) to otherwise ensure compliance with this Act, or the planning scheme, permit condition or agreement under section 173.

Nature of Application under Section 87

15. The Tribunal's power to cancel or amend a permit under Section 87 is limited in several ways. These include the limitation on the people who have standing to make an Application. The owner and occupier of the subject land are entitled to make the Application under Section 87(3), so that the owners are proper applicants.

16. A second limitation lies in the circumstances in which an order may be made under the Section. These are limited to cases where the Tribunal considers that there has been -

(a) a material mis-statement or concealment of fact in relation to the application for the permit; or

(b) any substantial failure to comply with the conditions of the permit; or

(c) any material mistake in relation to the grant of the permit; or (d) any material change of circumstances which has occurred since the grant of the permit; or

(e) any failure to give notice in accordance with section 52; or

(f) any failure to comply with section 55, 61(2) or 62(1).

17. If the Tribunal finds that one or more of these circumstances exists, there are further limitation. Section 88 states that the power may be exercised -

(a) if the permit relates to the construction of buildings or the carrying out of other works, at any time before those operations have been completed; or

(c) at any time, if the permit relates to the use of land.

18. We are satisfied that the construction of the new dwelling has not been completed, (as has been conceded by Mr Taylor) and that jurisdiction to make an order under Section 88 exists with respect to both the construction and its use.

19. Under Section 90, a list of persons who must be given a reasonable opportunity to be heard in relation to the application is set out, together with a discretionary power for the Tribunal to hear "any other person who appears to it to have a material interest in the outcome of the request." The Calderwoods are considered to be the only people falling into this category. Other persons in the list, including the Minister for Planning, have been given notice of the Application, but have not chosen to take part in it.

20. Unlike an application for an enforcement order, an Application under Section 87 is to be considered pursuant to criteria set out in the Act, at Section 90A. This provides:

(1) In determining a request, the Tribunal must take into account the matters set out in section 84B(1) as if the request were an application for review.

(2) The matters set out in section 84B(1) are in addition to any other matters which the Tribunal can properly take account of or have regard to or is required to take account of or have regard to in determining a request.

21. Section 84B(1) sets out the matters to be considered by the Tribunal in determining an application for review under the Act, and are therefore applicable in the case of Applications for review of decisions whether or not to grant a permit. Under this provision, the current Planning Scheme is relevant to the Tribunal's decision, even if the permit was granted under a different Scheme.

22. In making an Application for amendment of their permit under Section 87 of the Act, the owners relied on the following grounds:

? There has been a material mis-statement or concealment of fact in relation to the application for the permit.

? A material change of circumstances has occurred since the grant of the permit.

23. The first ground is related to allegedly incorrect levels shown on the site plan, which cannot be reconciled with the levels shown on the elevation plans. Wall heights have been calculated on the elevations.

24. The second ground is related to the alleged discovery of a granite reef during construction, which is said to have necessitated additional excavation and recasting of floor levels, and construction of an additional deck area. Further changes are alleged to have been found necessary as a result of practical difficulties arising during construction.

25. The subject land is a somewhat irregular lot with a frontage of 32.61 metres to the north side of Churchill Park Drive, and a rear boundary of 18.90 metres. The east boundary (shared with the Calderwoods) is 94.80 metres. The area is 2,369 sq.m. An existing single storey dwelling has been located on it at all relevant times.

26. The nature of the dispute which has given rise to these Applications can be summarised as:

? Permit P113/98 was issued by the Council for the construction of a dwelling at the subject land.

? The Calderwoods own and occupy the property immediately to the east of the subject land, at 44 Churchill Park Drive. They alleged (and it is not disputed) that no notice of the permit application was given to the Applicants prior to the issue of the permit.

? The Calderwoods (as well as raising the issue that gave rise to the separate Application for a declaration) allege that the permitted dwelling is of at least two storeys, and is partly located very close to the common boundary between the subject land and their own property; and that the permitted dwelling will adversely affect their amenity

? The Council, supported by the Calderwoods, alleges that what has been built does not conform to the plans endorsed under the permit for the dwelling.

? The owners deny that the Calderwoods are adversely affected by their building, and seek an amendment of the permit in order both to give retrospective approval for what has already been built, and approval for what has yet to be built.

27. Permit P113/98 was issued by the Council for the construction of a dwelling at the subject land on 20 March 1998, and plans were endorsed on the same date as follows: Working drawings ref. 97025.1 (floor and roof plans) dated September 1997, site plan dated May 1997 ref. 97025.2 (showing "proposed residence" and "existing residence to be demolished when proposed residence is complete") and elevations dated September 1997 ref. 97025.3, all drawn by Gerald Hanscamp, architect.

28. When the planning permit was granted, the former Knox Planning Scheme applied to the subject land, which was in a Knox Rural Residential Zone. The permit allowed (omitting reference to two conditions that are not material) -

"Construction of a Dwelling in accordance with the endorsed plans and subject to the following conditions:

1. The layout of the site and the size of the proposed buildings and works as shown on the endorsed plan must not be altered or modified without the written consent of the responsible authority.

2. The existing dwelling is to be removed 3 months after the issue of a certificate of occupancy for the proposed dwelling."

29. Since the commencement of the new Casey Planning Scheme on 26 August 1999, the subject land has been in a standard VPP "Low Density Residential Zone". It is not affected by any Overlay controls. The current controls are not disputed, although their effect is disputed.

30. In the Low Density Residential Zone, a permit is required for the use of a dwelling only if the conditions in Section 1 of the Table of Uses are not met. These are:

31. Clause 31.01-1 provides that if a condition for a Section 1 use is not met, the use requires a permit unless the use is specifically included in Section 3.

32. The relevant part of Clause 32.03-2 is related to infrastructure provision. It provides that:

"A lot may be used for one or two dwellings provided the following requirements are met:

* Each dwelling must be connected to reticulated sewerage, if available. If reticulated sewerage is not available, all wastewater from each dwelling must be treated and retained within the lot in accordance with the State Environment Protection Policy (Waters of Victoria) under the Environment Protection Act 1970.

* Each dwelling must be connected to a reticulated potable water supply or have an alternative potable water supply, with appropriate storage capacity, to the satisfaction of the responsible authority.

* Each dwelling must be connected to a reticulated electricity supply or have an alternative energy supply to the satisfaction of the responsible authority."

33. It is not suggested that these conditions cannot be met. But for a second dwelling on the lot, a permit is required for the use under Section 2.

34. As must be apparent from the permit conditions, when the permit was granted there was already a dwelling on the subject land. That dwelling has remained, occupied by owners, throughout the construction of the new dwelling and these proceedings. We adopt the reasoning and conclusion of Mrs Bruce in Application no. 2000/31643 in relation to the need for a permit under the Casey Planning Scheme.

35. A permit is also required for "Buildings and works associated with a Section 2 use", under Clause 32.03-4. This simply provides:

"A permit is required to construct a building or construct or carry out works for a use in Section 2 of Clause 32.03-1."

36. Unlike the Residential 1 zone, in the Low Density Residential Zone there are no specific decision guidelines governing construction of a single dwelling on a lot of over 300 sq.m. The zone purposes include a standardised policy element, but do not add anything as regards building standards. The purposes are:

"To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for low-density residential development on lots which, in the absence of reticulated sewerage, can treat and retain all wastewater."

37. The State Planning Policy Framework applies Vic Code 1 under Clause 16.01-2 (Residential development for single dwellings):

"Maximum use should be made of the Victorian Code for Residential Development -Subdivision and Single Dwellings (Department of Planning and Housing 1992) to plan subdivisions for development of single houses on lots of between 300 square metres and 4000 square metres."

38. Clause 16.01-2 therefore applies Vic Code 1 to subdivision, rather than directly to dwellings.

39. Under Clause 16.02-2, the State Planning Policy Framework requires that responsible authorities should use the Good Design Guide for Medium-Density Housing Revision No 2, Department of Infrastructure, April, 1998 and any Local Variation incorporated in the Scheme in considering applications for "medium-density housing". In most zones, this policy is implemented by a requirement that the Good Design Guide is considered when applications for second houses on one lot are assessed. However, this is not the case in the Low Density Residential Zone.

40. Clause 21.05 of the Casey Planning Scheme, which is part of the Municipal Strategic Statement dealing with the "Built up area", explains that the relevant policies are to be implemented by:

"Applying the Low Density Residential Zone to established and committed residential areas which may not be fully serviced but can treat and retain all wastewater."

41. Clause 21.09 of the Casey Planning Scheme ("Building New Communities") provides little by way of clarification. It states that the policy is to be implemented through the application of zones (among other things) by "applying the Low Density Residential Zone to identify areas for low density residential development".

42. The zone purposes and local policy therefore have little to say about planning individual houses once the subdivision has been laid out, although the expectation of a Low Density Residential Zone is obviously that the residential development will be of low density.

43. In most Residential zones in urban areas, the use of land for a single dwelling on a lot of the size produced under Vic Code 1 does not require a permit. Instead, siting standards are applied under Reg. 4.3 of the Building Regulations 1994, which provides that -

"Subject to section 11 of the Act this Division applies to a single Class 1 building and associated Class 10 buildings on an allotment with an area of more than 300m 2 or on an allotment where a planning permit is not required for that development."

44. The Building Regulations provisions which apply to a single dwelling are found in Regulation 4.4 - Siting Requirements:

"(1) Subject to this regulation, Class 1 buildings and associated Class 10 buildings must comply with the following VicCode 1 provisions -

Element 2 Building siting and design -Performance Measures 1-3 and 5-12; and

Element 3 Private open space - Performance Measure 1; and

(2) The consent and report of the relevant council must be obtained to an application for a building permit in relation to a design which does not comply with sub-regulation (1).

(3) The relevant council may give its consent under sub-regulation (2), if the design meets the appropriate Performance Criteria and Objectives set out in VicCode 1 for the Elements listed in sub-regulation (1)."

45. It was conceded by Mr Taylor, on behalf of the owners, that if the new dwelling (assuming it to be the only house on the lot) had not needed a planning permit, those standards would have applied.

46. While the zone provisions give little guidance in terms of specific decision criteria, Clause 65.01 of the Planning Scheme applies to the decision as to whether to grant a permit or approve a plan. Clause 65.01 requires the responsible authority to consider, as appropriate (omitting the matters which clearly have no relevance to this Application):

_ The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

_ The purpose of the zone, overlay or other provision.

_ Any matter required to be considered in the zone, overlay or other provision.

47. The Planning Scheme map and aerial photograph, confirmed by the Tribunal's inspection of the area, show that the subject land is one of a row of lots comprising that part of the Low Density Residential Zone which is laid out along the north side of Churchill Park Road west of Hallam North Road, looking northward over a steep incline. Mr Appudurai stated that the lots were generally about half an acre in area.

48. This area appears to have been governed under the former Planning Scheme by a site-specific provision in the Knox Rural Residential Zone which allowed subdivision into lots as small as 2,000 sq.m., despite the fact that the minimum requirement in the zone was 4,000 sq.m, with a frontage of 36 metres: see Clause 124.5 of the Knox Planning Scheme, a copy of which was tendered by Mr Taylor.

49. The Low Density Residential Zone continues on the south side of Churchill Park Drive, and also to both east and west of this row of lots. But on the north side of Churchill Park Drive, the zone is only one lot deep. Immediately to the north of these lots is a Residential 1 zone, reflecting an expectation of normal urban residential density. Development has started in this area.

50. The subject land and its immediate neighbours are steep lots, and have the advantage of a view to the north across the valley towards Lysterfield Park. The houses appear to be well set back from the existing two-way constructed road, but this appearance is enhanced by the width of the road reserve. Churchill Park Drive is in a Road Zone 2, and it would appear that the houses have been sited with its future, rather than existing, width and operation in mind.

51. These lots are long and comparatively narrow. The houses are generally sited towards the south end, which is more elevated, with the northern part either treed or left as informal recreation space. The aerial photograph tendered shows a pattern of houses laid out to make full use of the width of the block. This both maximises the view available to the south, and tends to minimise the area in which level areas have to be established for practicable floor space.

52. The owners have occupied the subject land for some years, living in the old house. Their evidence, which we accept, is that it was never their intention to keep both the old house and the new house as completed dwellings for more than three months. The new house (which is the subject of the permit) is laid out directly to the north of the existing house, with some overlap of eaves. The two houses could be made to co-exist. Indeed, the owners have been able to continue to live in the old house, even though the new house is almost completed.

53. Because a permit is only required under the current Planning Scheme for construction of the new dwelling if it needs a use permit (under Clause 32.03-4: Buildings and works associated with a Section 2 use) the only reason the use of the new dwelling needs a permit under the present Planning Scheme is the fact that it is a second house on the lot. But the owners' difficulties cannot be overcome entirely by removal of the old house. The position put forward by the Council can be roughly summarised as this:

* The new dwelling as built, and almost completed, does not comply with the Building Regulations 1994, because of the combination of height and setback on both the east and west sides. That would be so even when the original house has been demolished.

* In order to be able to obtain an amended building permit for the as-built construction while there is a current valid planning permit, the permit applicant needs to show that the building permit would be consistent with the planning permit: Section 24(1)(d) of the Building Act 1993 (as amended by the Planning and Environment (Amendment) Act 2000, from 1 November 2000).

* Even if no planning permit were to be needed in the future under the new Planning Scheme following completion of construction and demolition or removal of the old house, it is common ground that a permit was required when this one was granted, and it has been acted on.

* Even if the old dwelling is demolished, the new dwelling is being constructed under the planning permit. The lawfulness of the structure depends on compliance with both the planning permit and the building permit during construction.

* So long as the planning permit is in existence, it is possible to seek amendment of it under Section 87 of the Act (or any other available powers).

* If the planning permit is found to be invalid, but a planning permit is still required, the permit applicant is not prevented from having the opportunity to make a new application under the Planning Scheme.

* If there is no need for a planning permit, the Building Regulations apply directly to the new dwelling.

54. We accept that this is an accurate statement of the position, for reasons that we will go into below.

55. Particulars of the alleged contraventions, being differences between the dwelling shown on the endorsed plans and the dwelling as built (so far) were provided by the Council pursuant to the Tribunal's directions by letter dated 26 July 2000. The particulars were conveniently repeated in Mr Appudurai's submission. They fall into two categories - contraventions related to site levels and the height of the building, and other contraventions, listed for each of the eight elevations of the building.

56. The Council further provided a set of two plans, given reference 97025.1B and 97025.3C "Section 87 plan", marked up to show the areas of difference between the endorsed plans and the plans submitted by the owners as part of the Section 87 Application. This set of plans was very helpful in showing the effects of the changes made during construction.

57. In addition to the original list, a "schedule of differences" was tendered by Ms Houguet. This compares the plans submitted pursuant to the Application under Section 87 to the endorsed plans. It also includes some "as built" dimensions drawn from the Council's evidence as to building height. This list also followed the classification into contraventions related to the height of the building, and other matters listed for each elevation. It was accepted in substitution for the previous lists.

58. Mr G McDonald, the Council's Planning Investigations Officer, gave evidence that he had inspected the new dwelling on 25 July 2000, and had found that the building as then constructed had conformed to the plans lodged in the Section 87 Application, save that two windows in the south-east elevation on the plan had not been constructed, and a screen had been constructed above the verandah. These are the works carried out by Mr Cleeland, according to his evidence, in an attempt to address the Calderwoods' objections. We should explain that the verandah is constructed at the upper level, and continues around the building. There is a deck on the lower level, not shown on the endorsed plans, which terminates at the end of the north elevation.

59. There are many items included in the list of contraventions. Rather than refer to them all, we will schedule a copy of Ms Houguet's statement at the end of these Reasons.

60. We find it convenient to deal with the alleged contraventions by category rather than individually. There are four general categories. The most important is the category dealing with height, levels and setbacks.

61. Secondly, there is the category dealing with windows, the verandah and doors on the east side of the building, where overlooking of the Calderwoods' property is an issue.

62. Thirdly, there is a class of alleged breaches that is of concern to the Council because it alters the roof line.

63. Lastly, there are a series of alleged breaches where no-one has any objection to an amendment to the permit so as to give retrospective approval to them. Insofar as they are not dealt with individually in our Order, the items described will be approved and become part of the endorsed plans under the permit, through their inclusion in the plans submitted in the Application under Section 87 of the Act, which are the basis of the Amendment Order.

64. This is the most contentious category. Mr Taylor submitted that the new dwelling had in fact not been increased in height as the result of changes in the levels. Mr McCaffrey submitted that it was inevitable that the height must have been increased as a result of the changes in levels.

65. The relevant site levels are to be found in endorsed plan 97025.2 (the site plan). The floor level of the existing residence is shown on the plans as "RL 10". The "proposed residence" has two levels, shown as "upper floor RL 10.2" and "lower floor RL 7.3". The approved floor level for the upper storey is therefore only 0.2 metre higher than the floor level of the single storey existing house, the difference in levels being accounted for in the downward slope of the subject land and in proposed excavation.

66. Ground floor level and first floor level are identified as such on endorsed plan 97025.3 (the elevations) by way of extended lines and descriptive words, but not by stated levels. Natural ground level is by a weak line dashed across each of the eight elevations, without any identification. Wall heights are not stated. There is only one section, Section AA, which passes through the part of the building nearest to the Calderwoods' boundary. The plans are stated to be at a scale of 1:100, so that heights should be capable of being scaled for the purpose of the Council's assessment of the proposal and its impact (if any) on its surrounds.

67. Both Mr Appudurai and Mr Taylor relied on expert evidence from surveyors. Mr T Pumpa of Watsons Pty Ltd gave evidence on behalf of the Council. Mr Andrew J Smith of Kirkpatrick & Webber gave evidence on behalf of the owners. The statements of evidence of both surveyors were filed and served prior to the hearing, pursuant to the Tribunal's directions, so that they had an opportunity to consider and comment on each other's evidence.

68. Mr Pumpa's statement was originally provided as a report to the Council, and was related to a plan of survey dated 21 July 2000 showing interpolated ground levels at points A - J, and minimum wall heights within a tolerance of 0.2m at those points.

69. Mr Pumpa had been asked by the Council to determine the wall heights of the new dwelling. Mr Pumpa's evidence was that when he visited the site, it had already been excavated. To measure the wall heights in terms relevant to the endorsed plans, he needed the former natural surface levels. In order to establish natural ground levels, he took the floor level of the existing house, which is the point to which levels approved on the endorsed plan are related, and derived a digital terrain model using Liscad software and survey information gathered by his firm, and four points pegged on or close to the east and west boundaries obtained from the Kirkpatrick & Webber survey plan (for position only). He then compared the points derived in this way to the values derived from the Kirkpatrick & Webber plan. The differences were up to 0.18m, from which he assumed a tolerance of 0.2m in the final model. He was then able to use the model to show ground levels over the area that had in fact been excavated. These derived levels were described as "interpolated levels".

71. Mr Smith's evidence was that he had established boundary pegs and also carried out measurements for setbacks from boundaries and heights as instructed by Mr Cleeland at various locations. His results were depicted and tabulated on plan of survey ref. no. 6800D dated 16 February 2000, which was the plan used by Mr Pumpa for survey data.

72. Mr Smith stated that his survey results were identical with Mr Pumpa's at most points. His "workshop floor level" was 6.84m. This level indicates that a third floor was incorporated into the structure in the course of building, in addition to the two levels approved on the endorsed plans. The third level appears most clearly on the east elevation in the plans submitted with the Section 87 Application, ref. 97025.3C - that is, on the elevation nearest to the Calderwoods. It has been constructed with a door and window within the cut, so that it is partly below natural ground level.

73. Further instructions had led to Mr Smith visiting the subject land again on 21 July 2000, to determine the levels of the existing dwelling and the new dwelling then under construction. He had then produced a further report and plan, ref. no. 6800E dated 25 July 2000.

74. In order to compare the datum used by Mr Smith to the datum adopted by Mr Pumpa, it is necessary to add 47.05m to Mr Pumpa's levels. Thus the floor level of the existing house is 57.05 metres (at the front door, as shown on Mr Smith's plan ref. no. 6800E). As Mr Pumpa adopted the arbitrary datum used by the owners in their permit application, it is inconvenient that the survey plans produced on behalf of the owners should adopt a different arbitrary datum. This creates unnecessary work for the Council in seeking to assess the information provided, and wastes time as far as the Tribunal is concerned.

75. At the point nearest the eastern boundary (Point K) Mr Smith's levels were:

76. The report dated 25 July 2000 stated that the surface levels were interpolated to 0.1m accuracy, due to the uneven nature of the ground. The height differences between the interpolated surface level and floor and ceilings at points K and Y were found to accord with the differences scaled from the elevations on the endorsed plan (described as Architectural Working Drawing) no. 97025.3. But the survey showed that the first floor level of the new dwelling was 0.95 metres higher than the floor level of the existing house (as compared to the permitted 0.2 metre difference). Mr Smith stated that this difference did not accord with what was shown on plan no. 97025.2. He could not identify the source of the level datum shown on that plan. The level shown on plan no. 97025.2 did not accord with the elevations shown on no. 97025.3.

77. At the point nearest the western boundary (Point Y) the levels were:

78. Mr Smith found that his results practically accorded with Mr Pumpa's at the points which were virtually the same on the two plans. Assuming a tolerance of 0.2m, which Mr Pumpa considered acceptable for the original surface levels interpolated from the original survey work carried out by Kirkpatrick & Webber, Mr Smith found that the differences were within the acceptable tolerance. For example, at his "point K" (the northern tip of the eastern wall closest to the Calderwoods' boundary), his own interpolated surface level was 6.96, while Mr Pumpa's was 6.83m.

79. Mr Taylor conceded that the evidence of his clients' own witness showed that the first floor had been constructed at a level 0.74 metre above the level approved on the endorsed site plan. The effect of this on the overall height of the building and the height of the walls, however, was contested by Mr Cleeland.

80. Ms Coupe's calculation relating the approved ground floor level to the arbitrary datum adopted in Mr Pumpa's levels gave her a excess of 0.44m for the ground level as built, compared to the approved level.

81. Mr McCaffrey argued that if both the ground floor and the first floor levels were constructed above the approved levels, the height of the building must be in excess of the approved height.

82. The definition of height of a wall for the purpose of determining the setback of the wall from the boundary in Vic Code 1 is "the vertical distance between the top of the eaves at the wall line, parapet or flat roof (not including a chimney) whichever is highest, and the natural ground level of the lot boundary at a point at right-angles to the wall". In the case of a skillion roof, the height is the median height of the wall.

83. Mr Pumpa stated that he had made a remote determination of the reduced level (RL) of the wall height to the bottom of the bargeboard below the roof line, finding RL 13.65 metres. He stated that he was unable to physically measure the width of the board, but estimated it at between 150 and 200 mm. He adopted 150mm for the purpose of the wall height determination. This gave him a total height of RL 13.8 metres, with a minimum (within the tolerance) of 13.6 metres. This height converts to 60.85, or 60.65 minimum, on the datum used by Mr Smith.

84. Mr Smith noted that this height was practically identical to his own. In his report of 25 July 2000, he gives the ceiling level as 60.71m. Mr Smith had initially measured to the production line or to the bottom of the bargeboard, treating the bargeboard as part of the ceiling structure. He accepted the width of the bargeboard at 0.15m, explaining that if this width was properly to be included in the measurement of the wall height, 0.15m would have to be added to his measurements. He agreed that what had been built at the top of the walls was not what was shown on the plans.

85. Mr Petris, who gave planning evidence on behalf of the owners, took the wall height to the bottom of the barge board as 13.65m, and added 0.19 to find height "to the top of the eaves" at 13.84 metres. Mr Petris had access to a letter from Allied Building Services to Mr Cleeland dated 25 September 2000 and attached diagrams showing the width of the bargeboard at 190mm, and also how the bargeboard was fixed in relation to the top of the wall and the ceiling.

86. Mr Hanscamp corrected the previous witnesses' use of the word "bargeboard", saying that they were talking about the fascia, and it was 0.15m wide. He explained that the building had originally been intended to be built in brick, but that the material had been changed to weatherboard. This had resulted in a change to the design of the trusses.

87. We consider that Mr Pumpa's height is the appropriate one to use, as for practical purposes the surveyors have both adopted Mr Pumpa's height. Despite some initial argument, it was generally accepted by the parties that the top of the barge board (fascia) was the appropriate point to measure to in order to determine wall height for this dwelling when the building has no eaves. In our view, the purpose of measuring to the top of the eaves is to find the point at which the vertical structure of the wall gives way to the raked structure of the roof, which has a diminished impact on neighbouring amenity. It is therefore appropriate to measure to the top of the vertical structure. The actual measurement would be close to 150mm on the Allied Building Services diagram, as there is some overlap of the bargeboard with the top plate. The 0.04m difference is in any event too small to be meaningful.

88. Height is only defined in Vic Code 1 in terms the height of a wall above natural ground level for the purpose of determining its setback from a boundary. Under Element 2 PM8 of Vic Code 1, the maximum height of a building is 12 metres. No argument was directed against the use of natural ground level to determine the maximum height of the building.

89. Taking the wall height above natural ground level at RL 13.8 metres, Mr Pumpa calculated the wall heights from the difference between the top of the barge board as so determined, and natural ground level at the corners of the building, using the model created as described. These wall heights are set out on his plan of survey ref. 34503 dated 25 July 2000. The minimum height allows for the determined tolerance of 0.2m. We will set out only the points on the eastern side of the building:

90. At no point were the wall heights within 3.6 metres, even taking the minimum height. At all points, the standard in Element 2 of Vic Code 1 would therefore have required that a setback of at least one metre be applied.

91. Mr Smith showed minimum wall heights both as surveyed and as scaled from the endorsed plans, suggesting that the differences between these heights as shown on different plans should be shown to the nearest 0.1m, so long as this tolerance did not take the rounded height outside the suggested 0.2m tolerance for calculated wall heights.

92. A further copy of Mr Pumpa's plan of survey was annotated by him with interpolated RL levels based on the datum used by Mr Smith. This annotated plan allows the two sets of survey points to be compared as directly as possible, considering that the points are not identical in all cases.

93. The affidavit of Ms Coupe took up the story of the relationship between the survey information provided by Mr Pumpa and the endorsed plans. Ms Coupe stated that when she received Mr Pumpa's survey plan and report, she compared the dimensions of the dwelling as depicted on the endorsed plan to a set of plans submitted by the owners in an application for approval under Section 73 of the Act. She identified a list of differences between the wall heights as shown (by scaling) on the endorsed plans and the heights shown on these plans. This resulted in discrepancies between the approved wall heights and the "as built" wall heights submitted by the owners of up to 0.88m (elevations 5 and 6).

94. The wall heights at elevations 1 and 2 were found to exceed the heights on the endorsed plans by 0.74m (which is consistent with the increased floor level). Other variations found were 0.57m, 0.44m and 0.04m. There were therefore points in five elevations where the wall heights exceeded the approved height by more than 0.5m.

95. The plans used in the Section 87 Application was not filed and served until September 2000. After receipt of the Section 87 plans, Ms Houguet repeated the exercise, comparing the endorsed plans with the new plans. This comparison resulted in Ms Houguet finding discrepancies between the approved wall heights and the "as built" wall heights submitted by the owners of a maximum of only 0.05m (elevations 1, 2, 5, 6 and 7); 0.25m (elevation 8) and 0.25m at elevation 8. The additional surveyed points on elevations 1, 7 and 8 showed that the plans were within 0.10m of the endorsed plans.

96. These differences are generally less than the differences between the wall heights scaled from the endorsed elevations and as determined by survey at five specified points by Mr Smith, who set out his findings in a letter addressed to Mr Cleeland dated 1 September 2000. These measurements were taken in response to Ms Coupe's affidavit. Not only is Mr Smith's list of differences very close to Ms Houguet's; the differences as stated by both witnesses are now so slight as to be insignificant. We accept that the wall heights as constructed have not been raised throughout the structure to heights that are consistent with the raised floor levels, which are respectively 0.44m and 0.74 metres above the approved levels.

97. If Mr Cleeland had only constructed the approved building at these increased heights, it would follow that the finished wall heights would be correspondingly higher. But there is the question of the differences between the scaled heights at different points on the elevations, and Section AA. Mr Smith stated that he had confirmed the actual measurement on Section AA, and had scaled up to a 0.74 discrepancy in the "as-built" upper level. He confirmed the floor to ceiling height of the upper level as built was 2.7 metres. The wall height of the dwelling should therefore be 12.9 metres, using the approved upper floor level of 10.2, instead of the actual height (which he rounded to 13.7 metres). However, the building had "gone down as well as up", so that the creation of the unauthorised third level had not proportionally increased the overall height. On the side nearest the Calderwoods, the height difference was at most 200mm, according to Mr Smith's evidence.

98. The evidence of Mr Hanscamp, the design architect, explained the impact that the granite reef on the subject land had had on the proposed new dwelling. Mr Hanscamp had preferred that construction should take place on the site of the existing house, but was told that Mr Cleeland wanted to live in the existing house during construction of the new house, to save rent. A new site was chosen. A soil report had been obtained (although it was not tendered to the Tribunal). It stated that there was rock 1.8 metres below ground. Then rock was found to be within 0.3 metre of the surface. The engineer told him to build down to the rock. But the rock had deepened further down the hill. Mr Cleeland had followed the rock. It became more economical to build the garage differently to the way in which it was shown on the endorsed plans, so the cheaper method was adopted. He inferred that the new lower level developed out of the change of levels in the granite reef.

99. Mr Cleeland stated that the materials used in construction had been changed because the reef was found to be too shallow to allow for the 450mm depth required for strip footings to support brick walls. Internally, he would have used stumps for wooden floors, but the floors also needed 300 mm from ground to bearers, then 200 mm for joists, making a total of about 900mm clearance above ground level. The engineer had said that he could found the brickwork on the reef, but he was not sure that the foundation was rock all the way round. After he saw the reef bared, he want back to strip footings. Mr Cleeland referred to a plan that he had marked up showing the extent of the reef, which is shown as under his existing house, continuing through more than half of the area occupied by the new dwelling, and continuing onto the Calderwoods' property.

100. Mr Hanscamp was only concerned about the impact of the change, not by the fact that the dimensions had changed. He admitted that he had never read the permit. He thought that you only had to comply generally with permits. He had been surprised that the neighbours were not notified, because of the impacts on their amenity, of which overlooking was the worst. It was his opinion that the height of the building was only about 250mm more than the approved height where the Calderwoods could see it. He further stated that the ridge line of the new dwelling is within 100 mm of what is shown on the endorsed plans.

101. Mr Taylor submitted that the architect had made a mistake about the change in the natural ground level, and submitted that this was a relevant mistake for the purposes of jurisdiction in the Section 87 Application.

102. Mr Hanscamp stated that the had shown the original levels on the elevations. He stated that "he would have been instructed to raise the floor level", but appeared to have neither recollection nor record of Mr Cleeland instructing him. He has no recollection of doing alterations in the levels. He had started with the floor level of the existing house as the datum, but "guessed" that Mr Cleeland had instructed him to raise the height. But when he drew the elevations, Mr Cleeland was not sure what ceiling heights he wanted, so no dimensions were placed on the elevations. He did not give the Council dimensions because the Council did not ask for them.

103. This does not explain the measurements Mr Hanscamp used for drawing the elevations and the Section to scale. Mr Hanscamp stated that Mr Cleeland had not been sure whether he wanted to have ceiling heights of 2.7 or 3.0 metres. The Section shows 2.7 metres for the upper storey and 3.0 metres for the lower storey (by scale). The elevations are consistent with the Section. We consider that Council therefore had not been informed by means of the documents forming part of the permit application that there was any possibility of one of the floors having any other ceiling height.

104. Mr Cleeland, however, stated that it had been his intention to have a ceiling height of 3 metres for the upper floor. When he discovered that the approved height was 2.7 metres, he sought a variation of the Building Regulations. The purpose was to correct the scaled dimension, and to allow the setback to remain as already built. At that stage, his concern was the neighbouring owner on the west side, who was "making all the noise". He did not include his new lower level in the application for variation. After receiving the decision on the appeal from the Council's refusal of the variation, Mr Cleeland abandoned his attempt to have a 3 metres ceiling height adopted for the upper floor.

105. As shown on the plans submitted in the Section 87 Application, the lower floor has been built with a floor to ceiling height of 3.2 metres, as well as an unapproved lower floor having been built below it. The upper floor is shown as having an as-built ceiling height of 2.7 metres. These discrepancies come close to cancelling each other out as far as floor to ceiling heights are concerned, but do not alter the fact that the upper floor level is 0.74 metre above the level to which it was approved. The net decrease of 0.1 metre as between the two floor to ceiling heights has not altered this level.

106. The elevations, both in the case of the plans submitted with the permit application and the new plans submitted in the Section 87 Application, are represented as being to scale. The plans themselves bear the legend that they are drawn at 1:100. When the permit application was lodged, the Council (as well as any persons given notice of the application) was invited by the permit applicant to rely on these plans in order to assess both compliance with the Planning Scheme and the impact of the proposal on the amenity of the neighbourhood. Discrepancies between what the plans say the heights are - whether by dimensions or scaling - and what is built can obviously change the impact of the building. The fact that the plans used in the permit application presented elevations and a Section drawn to scale, but does not also state dimensions, does not leave it open to the permit applicant to change the heights during construction.

107. Mr Hanscamp acknowledged that he had dimensioned the plan submitted to the Council in the application for amendment under Section 72 of the Act using a scaled height of 3.8 metres from ground floor level to first floor level, while the as-built height is 4.1 metres, as now shown on the east elevation in the Section 87 plans.

108. As Mr Appudurai pointed out, the plans submitted in the Section 87 Application still do not show all the changes in the site plan; they omit the third level, which has already been built. In cross-examination, Mr Hanscamp stated that the levels (RLs) were not related to the elevations. He stated that he had never looked at the site plan when he was changing the plans.

109. Mr Hanscamp's evidence was that he had no continuing role in supervising construction or giving advice. He made changes to the plans when he was asked to do so by Mr Cleeland.

110. Mr Cleeland described his frustration in being unable to get from the Council particulars of what he said were alleged "huge discrepancies" between what had been permitted and what was built. He engaged his own surveyor. He pointed out that it was wall height at the point nearest the eastern boundary that concerned the Council through this period, not the setback.

111. The attention given by the parties to the wall heights has two possible purposes. One is to establish whether the permitted height of the dwelling has been exceeded, which may have consequences for the impact of the building on the amenity of neighbouring owners. We accept that any change in the overall height of the new dwelling is not of significance in terms of the impact that the as-built dwelling will have, compared to the dwelling as permitted.

112. The other purpose is to establish whether the building complies with height-setback relationship which applies under those parts of Vic Code 1 that are incorporated into the Building Regulations. This is not directly relevant to the Application for the enforcement order, but may be relevant as a discretionary factor, as a basis of comparison to the standards applied to the new dwelling. The relevant height for this purpose is the height detailed by the surveyors as the wall height above the interpolated ground level (with a 0.2m tolerance). The ratio is referred to in Mrs Bruce's decision in Application no. 2000/31643, and we will not repeat it.

113. The most significant points on the structure for the purpose of the relationship between the boundary shared between the subject land and the Calderwood property are identified as points K and L on the Plan of Survey ref. 6800D prepared by Mr Smith. Mr Smith, in his evidence, stated that all the setbacks of the new dwelling were in accordance with the endorsed plans except these two. They are respectively the north and the south ends of the length of the east wall closest to the common boundary.

114. Mr Smith stated that the setbacks were 1.93 metres at point K and 1.89 metres at point L. The approved setback is 2.1 metres. There is a failure of compliance with the permit with respect to any part of the dwelling constructed within 2.1 metres of the east boundary, which would include parts of the south-east elevation, as well as the east elevation.

115. But Mr Smith's setbacks are taken to the solid walls. The verandah posts are shown on the plan, but the outline of the verandah is not. The verandah posts nearest to the common boundary, supporting the eastern verandah, are at points F, G and H on the plan. Point F is set back 0.38 metre, point G is set back 0.41 metre, and point H is set back 0.43 metre.

116. In cross-examination, Mr Smith agreed that he had measured to the back of the posts, being the points closest to the common boundary; but he had not measured to the footings - the concrete drums which broaden the width of the support structure to an extent which he estimated at 30mm. His measurements are therefore not accurate at ground level, but at a point about a metre above ground.

117. It is not only the posts that are located within the setbacks shown on Mr Smith's plan. The verandah has a solid floor, a roof, rails securing the open side, and is wide enough for people to walk along, or place chairs and sit on. The posts themselves are steel, with their lower parts encased in thick concrete blocks. We consider that it presents an unrealistic representation of the effect of the building if the verandah is omitted from the plan.

118. The position of the dwelling as located on the site by Mr Pumpa was derived from the partially completed building and the architectural plans prepared by Forestgate Design Pty Ltd. He had not been instructed to provide setback distances. Both surveyors identified the points at which the solid walls were nearest to the site boundaries, but Mr Pumpa's plan is not a title survey. Mr Pumpa had no argument with Mr Smith's setback distances. We find that the setbacks are as stated by Mr Smith.

119. We adopt the findings set out in the decision in Application no. 2000/31643 regarding the operation of the Building Regulations in relation to the height and setback of the dwelling, and will not repeat the evidence of the relevant distances here. We are satisfied that the new dwelling as constructed is a dwelling with external walls exceeding the maximum height of 3.6 metres within the relevant minimum setback of 1 metre, and is also partly constructed within the setback required under the ratio applied pursuant to the Building Regulations. In considering the matters relevant to the exercise of the Tribunal's discretions, we are therefore not persuaded that we should treat this dwelling as being effectively "as of right" as soon as the existing house is demolished. We agree with the Council that its legal status is reliant on the permit. Whether this may alter in the future as a result of modifications to the Building Regulations is not a matter on which we feel obliged to speculate.

120. In addition, the verandah and all other parts of the building within 2.1 metres of the boundary are constructed in contravention of the permit. The setback distance is only 0.2 metre as far as the wall is concerned, but the verandah is considerably affected; and the floor level of the upper floor and verandah are built to a height substantially in excess of the permitted height.

121. The length of the east wall directly parallel to the common boundary is about 5.5 metres. The east side of the dwelling overall is of considerably greater depth and bulk than this dimension would suggest, but the dwelling is laid out so that the eastern wall is the closest point to the common boundary, and the walls are then angled away. At the northernmost point on the east side of the building (being the extremity of the wall running north-west from point K) the setback is given by Mr Smith as being 6.46 metres from the common boundary, and the southern equivalent is at 10.12 metres.

122. Mr Taylor submitted that there was nothing unique about the scale of this dwelling, or its proximity to side boundaries, in the general area. He produced photographs of houses both recently constructed in Churchill Park Drive and in the nearby townships.

123. Insofar as these photographs show examples of houses built very close to side boundaries and in disregard of the privacy of neighbouring dwellings, we do not consider that these are examples that should be followed. We note, however, that in most cases there has been care taken to site windows so that there is no direct overlooking into neighbouring dwellings.

124. While enjoyment of a view across the valley can be expected to carry with it a tendency to build wide and high, with large windows facing north over the valley and national park, the north-facing windows and balconies do not necessarily overlook the whole of the neighbouring back gardens. The angles of view and the effect of distance play a part. The northern part of the new dwelling is north of the area of the Calderwoods' property that they regard as particularly sensitive. It is the side windows and balcony to which they object.

125. Mr Calderwood identified the areas of concern as being the habitable rooms on the north elevation of his house (which have large areas of windows), the terrace facing north, connected by glass doors to the northern habitable rooms, and where there is an outdoor table and chairs used by the family to enjoy their garden and view, and the swimming pool, which is located down steps both north and at a lower level than the terrace. The pool area is surrounded by separate fencing, and is screened by vegetation which has been trained up around it, independently of any screening that the owners might provide. Mr Calderwood, however, felt this to be inadequate screening, given the height of the verandah and the windows and glass doors in the east and south-east elevations.

126. Mr Cleeland stated that it was his intention to re-establish a dense hedge along the common boundary, to replace the impenetrable hedge that they used to have. This hedge was removed prior to commencement of construction. Mr Calderwood objected that it would take years for the trees he had already planted to grow sufficiently for that purpose.

127. The photographs of the new dwelling at various stages of construction, with dates identified, show that no part of the roof had been built by 17 April 2000, and the galvanised iron roofing had not been started by 19 June 2000. By then, the legality of their construction was under challenge by both the Council and the Calderwoods.

128. The roof that has been built, however, is not in accordance with the endorsed plans. "Relief" gabling has been omitted, one gable has been substantially enlarged so as to change its shape and alter the proportions of the upper part of the building, and changes on the east elevation have produced a more solid structure with elements of greater height than were approved. The structure has been simplified.

129. Mr Cleeland stated that the changes had been made as a result of technical difficulties with the roof trusses that he had encountered during construction. In particular, he had incorporated an new gable to accommodate a double truss girder required to go down the middle of the roof. He explained the fact that he proceeded with construction without seeking an amendment of the endorsed plans by stating that his private building surveyor had advised him to collect up all the changes he was making during construction, and make one overall application for modifications at the end of the process, rather than making a separate application for each one.

130. Ms Houguet, as the Council's Manager, Planning, referred to the local policies now applicable to the subject land. These are relevant under Section 84B of the Act

131. Under the Municipal Strategic Statement, this area is within the Foothills. Relevant objectives and strategies set out in Clause 21.04-2, which were referred to by Ms Houguet include:

To ensure the long term protection and enhancement of the Casey Foothills for its:

significant visually exposed hilltops and ridge lines; and,

vegetation, which provide the "green" backdrop to the City of Casey.

To identify and protect hilltops, ridges and other areas with identified landscape significance from development that jeopardises the "green crest" that characterises the Foothills.

To preserve the identity of rural settlements and townships and provide for rural residential development in specified areas.

To increase public access to and use of open space by the provision of open space linkages.

To allow development compatible with the protection and enhancement of the Foothills and protect the area from the threat of bushfire.

132. We do not find this policy particularly helpful. The area is identified in Clause 21.04-1 as being of importance -

"......because the hilly terrain offers topographical and scenic relief to the low-lying built up areas. In addition, its visual qualities contribute to a positive image of the municipality as a desirable place to live. The area should be protected because intensive development will destroy scenic attributes."

"......located to the north of the municipality, and consists of the areas around Lysterfield, Narre Warren North and Harkaway. It is located in hilly terrain, with breathtaking views to and from the ridges and other vantage points. The region is predominantly used for grazing, horse agistment and regional open space (Lysterfield Lake Park, Churchill National Park and the Police Paddocks).

There are two rural settlements at Harkaway and Narre Warren North. There is a variety of lot sizes, ranging from small house lots in the rural settlements to rural residential lots in Lysterfield, to much larger land holdings elsewhere. Most of these lots are unsewered.

The area is facing increasing pressure from landowners wishing to subdivide and develop land at higher densities."

134. Ms Houguet described the locality of the subject land as being Lysterfield, rather than Endeavour Hills, which is how it is described in the permit, and which is the description adopted by Mr Petris. The Council documents related to these Applications also describe it as Lysterfield South. Whichever is the currently correct locality description, the subject land is already part of an estate that has been permitted to be subdivided into lots which, under the former Knox Planning Scheme, were sub-standard. This particular estate has not been singled out for mention in the MSS. The development in question is for a house in a Residential zone, on condition that an existing house be removed; so that in our view the only relevant factor under this policy could be the location of the house in relation to the ridgeline.

135. The only relevant policy objective in the Residential Development Policy, at Clause 22.05-1, is -

"To identify existing environmental features, land uses and constraints which need to be considered in the development of land for urban purposes."

136. However, the zone provisions do not contain any decision guidelines at all for the construction of a dwelling, and the decision guidelines for the use of land for two houses are related only to servicing requirements. There are no requirements that reflect concern over the siting of an individual house within an existing lot based on landscape protection grounds.

137. Although the roofline as built will present a bulkier appearance, we consider that the effect is relevant to the amenity of the neighbouring properties rather than to the impact of the general landscape. There is no question of the roofline protruding above the crest of the hill on the slopes of which the subject land is located.

138. The most extreme of the other changes made to the approved dwelling by Mr Cleeland in course of construction is the inclusion of an additional level. The additional large room thus created is described as a "storeroom" on the plans accompanying the Section 87 Application.

139. Other changes to the garage entries and internal layout are not contentious. The many changes to windows and doors are only contentious in the area where they potentially affect the Calderwoods.

140. We accept the comprehensive evidence of the alleged contraventions constituted by unauthorised variations from the endorsed plans as set out in Ms Houguet's appended list and illustrated on the marked up copy of the "Section 87" plans in general terms. We are prepared to use the amendment power to approve all those contraventions other than the contraventions relating to height, setback and overlooking, to which we will now turn.

Discretionary factors in the enforcement order application

141. The confusion on the part of the Council over exactly what was wrong with the new dwelling is a factor which influenced the situation until Maddock Lonie & Chisholm's letter of demand set out the situation both under the permit and under Vic Code 1 pursuant to the Building Regulations.

142. Although it is very unsatisfactory for the owners to be unable to obtain a clear statement as to the nature of the alleged breaches as soon as an allegation of contravention is made, we do not think the owners in this case had far to look for the major contraventions. As builder, Mr Cleeland in particular should have been aware that when he created a new storey, set out the building within the permitted setback, changed the floor levels from the levels shown on the endorsed plans and redesigned the roof, he was departing from the building that had been permitted. We also consider that this consideration does not outweigh the impact of the dwelling as constructed on the amenity of the Calderwoods, who had nothing to do with the Council's initial confusion.

143. We do not consider that the Council's position in its Application for an enforcement order should be prejudiced by its difficulties arising from its interpretation of the plans at the application stage, as far as the subject land is concerned. Although the Council had power to call for more information, it is entitled to rely on the plans as submitted. If there had been obvious inconsistencies between scaled heights in Section AA and on the relevant elevations, for instance, it could be expected that the Council would have required further information. But so long as the plans contained both floor heights related to a known datum, the minimum side setbacks, and wall heights that could be scaled from the elevations, technically the Council could work out the relevant information about the nature of the building so far as the subject land itself was concerned. But it is hardly surprising that the Council assumed that increased height was a consequence of the changes made during construction, having regard to the appearance of a third level and the height of the eastern and northern elevations when viewed from the foot of the building, prior to survey information providing the location of natural ground level.

144. The information provided with the permit application included nothing about the impact of the building on the surrounding area, beyond the floor levels, scalable wall heights and setbacks. It is in this area that we consider that the Council fell short in its processing of this application; but it must be recalled that this is not an application to which Clause 52.04 (the site analysis requirements) of the present Planning Scheme applied. If the present Planning Scheme had applied when the permit application was made, the relevant zone still does not contain a direct requirement for a site analysis; but the general terms of Clause 52.04 would have called for a site analysis and site response for the new dwelling as a second house on the lot.

145. We accept the evidence of Mr Calderwood that there is overlooking from the new dwelling into the areas of concern that he identified. The overlooking from windows was worse on the endorsed plans than it is in the as-constructed state of the dwelling. However, from "point K", the upper wall is glass in the directions of the Calderwoods' property, and overlooks their living and recreation areas. The potential overlooking from the verandah too is directly towards the living room and northern terrace that are a valued part of the Calderwoods' enjoyment of their home, and also into the pool area. We observed the layout of the Calderwoods' house and the potential for overlooking from the verandah when we inspected the subject land, the Calderwoods' property and the locality.

146. Although there are two mature eucalypt trees which partially screen it the Calderwoods' property, we do not regard this as adequate screening. We were able to confirm that a direct view to the pool area, the living room and terrace were available from the verandah, although not from every part of it.

147. At the northern end of the house, the verandah broadens out into a wide deck, where the owners can enjoy outdoor living with the maximum view across the valley. This is their equivalent of the Calderwoods' terrace. Mr Taylor argued that they were unlikely to use the eastern side of the verandah when they had this area. However, in our view, they do not need the eastern side of the verandah for any purpose that outweighs the impact on the Calderwoods' amenity.

148. Mr Cleeland in his evidence stated that he intended the verandah to be a fire exit, and needed it to extend right round the house. We see no justification for this. Without the eastern end of the verandah, there would still be an exit to its northern part from the large room on the upper level.

149. Although at the western end, there is extensive overlooking from the verandah to the terrace area of the neighbouring house, as the owners of that house have not chosen to participate in these proceedings and make submissions concerning the new dwelling's impact on the house that they purchased after construction had commenced, we do not propose to make any orders for modification of the verandah at that point.

150. We accept Mr Calderwood's evidence that he had not known prior to construction of the verandah posts that it was proposed to construct so close to the boundary. The only plan he had been shown did not make it clear that there was to be a verandah at the upper level, did not show a setback to the verandah, and did not show the location of posts for the verandah.

151. Mr Petris tendered a shadow diagram that showed the north-west part of the Calderwoods' house located in relation to the common boundary and the location of the two houses on the subject land. He did not have a surveyed setback from the Calderwoods' house to the common boundary, but took the closest point to the house to be 2.4 metres (at the northern end), while the setback is 4.0 metres at the southern end. The distance from the boundary to the edge of the deck is about 1.7 metres.

152. This is the only plan that relates the buildings on the two properties to each other. Mr Petris stated that the distance between the wall of the new dwelling and the Calderwoods' house was about 5.3 metres, and between the verandah and the Calderwoods' house was 3.4 metres. These distances are taken at points because both buildings are set at angles to the boundary, and the eastern elevation of the new dwelling is the only area where there is a wall constructed parallel to the boundary on either property.

153. Mr Petris stated that setbacks of about 2 metres from side boundaries were common in the area; but he also stated that if a verandah was included, it should have a similar setback. He stated that the reduction in setback from points K and L (the extremities of the eastern wall) at 200 mm was not considered significant in terms of the effect on privacy and overlooking. But he added the riders that this was bearing in mind that the Calderwoods' house was about 5.5 metres away, and that points K and L complied under the Building Regulations, which he regarded as the applicable control.

154. Despite this, Mr Petris expressed the opinion that the proximity of the verandah to the common boundary had an effect on amenity, and should be reduced. He suggested removal of the verandah roof and reduction to a width of about 0.9 metre, which would allow for access, but make it unlikely that people would stand or sit in the eastern part of the verandah. He regarded this as producing a better outcome in terms of privacy and overshadowing.

155. Mr Petris suggested that by this means, the verandah would become a deck. Reducing deck width by 0.67m at point H and 0.62 at point F would leave widths which accorded with his calculation of the Vic Code 1 setbacks, 0.83 and 0.88 metres at those points. He suggested that the existing frame would be classed as a pergola. We assume that Mr Petris does not intend that the roof beams should be cut back, but only that the galvanised iron be removed, exposing the beams. This is the proposal as explained by Mr Cleeland, who stated that the spouting would have to remain.

156. Mr Petris also pointed out that his proposed cut back would make more room available for a landscape screen, being of the view that the presently available space was "somewhat constrained".

157. Mr Cleeland gave evidence that it would be difficult to change the verandah structure, which incorporates the verandah beams into the support structure for the house. He stated that part of the structure was needed to support the fascia. Having observed the points at which the beams end, we doubt if this is a major factor. The eastern verandah roof appears as a separate structure from the house roof on the elevations. The diagrams tendered with the copy of the report by Mr Miles of Allied Building Services (who is the owners' private building surveyor) to Mr Cleeland dated 25 September 2000, following an inspection, show no necessary connection between the verandah roof and the fascia. Without the verandah roof, the fascia would remain as illustrated. Nor do we consider that it would be impossible for the house roof to be adequately drained without the verandah roof.

158. While we note Mr Petris' suggestion for a way in which the existing posts and roof beams could be kept intact, we do not consider that is it appropriate to have a series of steel and concrete posts along the boundary, meeting the skeleton of the verandah roof. The height of the posts, and the concrete structures encasing the lower parts of them, make them substantial structures. If this proposal had come before the Tribunal by way of Application for Review (as it may well have done if notice of the permit application had been given to the Calderwoods), we do not consider it would have been successful. We would certainly not have permitted it. It would be a tall, ugly structure, looming over the eastern boundary. We do not consider that we should authorise such a structure as part of the permanent fabric of this building, even having regard to the overall context within which we must consider it.

159. Mr Cleeland also indicated a wish to retain the maximum possible roof area, for purposes of water collection. He admitted that he now has a reticulated supply available, although he described it as a "trickle". While we accept that it is desirable to harvest and use rainwater in this area, we find that the area of the roof will be very extensive even without the eastern end of the verandah. In the absence of any water demand and supply figures, we do not consider that cutting back the eastern verandah roof will unreasonably deprive the owners of water.

160. Mr Petris' shadow diagram shows that these is some impact on the Calderwoods' house and back garden at 3pm at the equinox. It affects the north-west corner of the terrace and the window of the western room, which is a bedroom. There are no windows in the Calderwoods' west wall. Mr Calderwood did not raise any concern about overshadowing of the pool area.

161. The shadow diagram shows both the shadow cast by the wall and the shadow cast by the verandah. Without the verandah, no window would be affected by shadow during the period to 3pm at the equinox, which is the applicable design date. This is an additional advantage of modifying the verandah.

162. Mr Petris' evidence was affected by his assumption that no permit was required for the new dwelling, so that he related his assessment to Vic Code 1. We accept that it is legitimate for us, in the exercise of our discretions under these Applications, to consider what the future position will be assuming the permit condition requiring demolition of the existing house is acted on. We have already noted our conclusion, however, that the dwelling as built would not comply with those parts of Vic Code 1 that are incorporated by reference in the Building Regulations.

163. We do not consider that any dealings or conversations between the Calderwoods and Mr Cleeland prior to the issue of the planning permit were sufficient warning to the Calderwoods of what was proposed to be built so as to diminish their entitlement to relief from the more severe impacts arising from the construction of the new dwelling so close to the common boundary, and to their own house and terrace. We adopt the recital of evidence on the history of these communications set out in the decision in Application no. 2000/31643.

164. Although Mr Appudurai submitted that the impact on the dwelling on the property situated to the west of the subject land, 48 Churchill Park Road, should be taken into account, we do not consider that we should do so. This property changed hands after construction of the new dwelling had commenced (as described in the decision in Application no. 2000/31643), and notice of the commencement of the proceeding was given to the new owners in the enforcement order application. They have not chosen to participate. The Tribunal takes this to be an indication that they made use of their opportunities to enquire into the situation before they purchased, and do not wish to seek enforcement of the permit or modification to the approved plans. Their position with respect to any proposed modification would be an awkward one, as at the time of purchase, construction was well enough advanced for the scale of the building and its proximity to the western boundary to be evident; while the extent of the proposed windows and verandah with potential to overlook their property would have been apparent from the endorsed plans.

165. The grounds available under Section 87 to the owner of the land to which the relevant permit refers are set out in sub-section (1). They fall into two categories - grounds where the permit applicant, owner or occupier has been at fault, and grounds which provide for changes in the absence of fault, such as change of circumstances. These two categories are recognised in Section 94(4) of the Act, which deals with rights of compensation arising from cancellation or amendment of a permit.

166. The first of the owners' grounds is "material mis-statement of fact". This ground relied on the levels shown on the site plan, which were "misleading and incorrect, and cannot be reconciled with levels shown on the elevation plans upon which the wall heights of the building as constructed have been calculated". The plans in question were two of the three endorsed plans, which were submitted as part of the permit application, ref. 97025.2 (site plan) and 97025.3 (elevations and section).

167. As this is a ground that relies on the owners' own fault, or in this case the fault of those preparing the plans submitted by the owners, the Tribunal would need good reason to amend the permit in favour of the owners on this ground. In the present case, the Tribunal accepts that the owners themselves did not intend to mislead the Council, and were not personally responsible for the mistakes, although as builder, Mr Cleeland should have been capable of reading the plans and recognising an inconsistency of this nature. In addition to the lack of personal fault, the opportunity to use the amendment power to seek to overcome the unacceptable features of the as-built structure is a factor in favour of exercising the discretion to amend on this ground.

168. The alternative ground, that of "material change of circumstances" applies to matters that have occurred since the grant of the permit. Three of the matters relied on are:

? During construction, a granite reef was encountered which necessitated additional excavations and recasting of floor levels and required the addition of a verandah deck to the east and north of bedrooms 4, 3 and 2.

? Practical building issues necessitated the realignment of some walls and the rescheduling of windows.

? The architect's roofline concept shown on endorsed elevation plan 97025.3 was inappropriate for the satisfactory manufacture of roof trusses and alteration to the roofline was necessary.

169. In addition, a further matter is relied on: a series of changes which Mr Cleeland identified as attempts to respond to the Calderwoods' concerns about loss of amenity, and the alleged request by the Calderwoods for changes to the verandah roof and decking close to their boundary.

170. At the hearing, Mr Taylor also relied on the change to the Planning Scheme, submitting that the change in zoning controls was material, particularly having regard to Sections 90A and 84B of the Act, which set out matters which the Tribunal must or may take into account in considering an application under Section 87. Mr Taylor submitted that the new Planning Scheme provisions render lawful the construction of a single dwelling on the subject land, without the need for a permit. He drew the conclusion that this "had rendered lawful the variations from the planning permit".

171. Mr Taylor nevertheless argued that the Tribunal had power to amend a permit, even if it was no longer required, relying on Seventh Columbo Pty Ltd v Melbourne City Council [1998] VSC 7, an unreported decision of McDonald J dated 30 July 1998, in which his Honour concluded:

"The language of s.87(1) of the Act which provides that the Tribunal "may amend any permit", if it considers that one or more of the matters identified in sub-ss.(a)-(f) exist is clear. In my view, the section does not allow of it being interpreted to exclude from the discretionary power to amend a permit a class or type of permits not identified by that statutory provision or the Act."

172. The context of this decision was a permit carrying non-conforming use rights, and the argument was about the power to lift restrictions to which the non-conforming use had been subject. This is readily distinguishable from the case of a permit that the permit holder alleges to be no longer necessary. However, as indicated above, we do not agree that the permit is not now required. If we did, as a matter of discretion we would be disinclined to amend a permit that the Applicants claimed was no longer needed. If we accepted that argument, we would have doubts about the Applicants' willingness to accept and act on any conditions we might impose as part of the amendment of the permit. If a permit is not needed, it follows that its conditions can be disregarded with impunity.

173. As described in the reasons for the decision in Application no. 2000/31643, the evidence showed that Mr Cleeland had discovered the granite in the course of excavation for footings, when the bulldozer came onto the site in July 1998. The building permit had not then been issued. If the granite had been found to be a problem, the matter of the impact on the endorsed plans arising from the owners' proposals to deal with it could have been raised with the Council at the excavation stage, before full-scale construction started, and an application made to the Tribunal for amendment to the endorsed plans if necessary. The raising of the floor levels of a building so close to the boundary may well have been considered by the Council to be beyond its power of amendment under Section 73 of the Act.

174. Ms Houguet rightly pointed out that the Application under Section 87 did not include the changes to the levels of the two storeys, or for that matter, the creation of a third level. If the Application plans were approved without consequential amendments, it would result in a discrepancy between the levels shown on the endorsed plan and the floor levels shown in the amended elevations when related by scaling to the established natural ground level.

175. Much of the evidence relevant to the issue of delay has already been set out in the decision of Mrs Bruce in Application no. 2000/31643. We will confine our reference to the evidence on this subject to a brief summary of what we regard as the main points.

176. The evidence on behalf of the Council (summarised in the statement of Ms Coupe) showed that Ms Houguet wrote to Mr Cleeland on 6 August 1999, advising that the dwelling under construction (of which he was the builder) did not comply with the approved plans, directing him to cease all work and rectify breaches of the permit. Mr Cleeland responded by letter dated 20 January 2000 with an assertion that he had constructed in accordance with the permit, and sought agreement that he should continue. The Council's solicitors wrote a formal letter of demand to Mr Cleeland on 11 January 2000. This demand had three aspects: that the construction work be modified to comply with the endorsed plans, that the construction work be modified to comply with Vic Code 1, or that modifications be obtained under the Building Regulations. Failing compliance, Mr Cleeland was advised that the Council would apply for an enforcement order. Maddock Lonie & Chisholm sent a further detailed letter of demand to the owners dated 1 February 2000.

177. Whatever confusion there may have been in the Council's responses when the owners challenged the previous demand that work should cease, after 11 January 2000, in our view the owners were clearly on notice that whether they sought to rely on the permit or Vic Code 1, they were in breach.

178. Mr Calderwood's evidence was that knew in September 1998 that a two-storey dwelling was proposed on the subject land. The only plan he saw prior to March 1999 relating to the proposed dwelling (the plan attached to the protection works notice) showed the building at a setback of 2.1 metres from his boundary, with an unidentified line between the setback and the boundary. He had thought that because the structure was off the boundary, there was not much he could do about it. His main objection was to the verandah being constructed within the setback shown on the plan. The consequences in overlooking, and the impact of the bulk of the building, came from its proximity to the boundary. Some months after the Calderwoods first raised their objections with the Council, they were informed that the commencement of the new Planning Scheme meant that no permit was needed, and the Council could not enforce the permit.

179. Under cross-examination by Mr Taylor, Mr Calderwood stated that he and Mrs Calderwood had spoken to a solicitor who advised them to contact an expert, but that they had not done so. Mr Calderwood made it quite plain that he had relied on the Council to "do something about it". He did not look at the Planning Scheme to see what it allowed. Nor did he ask Mr Cleeland to stop work when he first became concerned about the height of the support posts and proximity of the verandah. Mr Cleeland stated that it was in March 1999 that he had had the first contact with Mr Calderwood that was not amicable.

180. Mr Calderwood also admitted that he had been aware of the intention of his former neighbour at 48 Churchill Park Drive to commence a legal action. He did not seek to join him in this action, but thought he would wait and see what happened. This neighbour had been strongly opposed to the development. The result was that time passed and that owner sold out.

181. The photographs tendered by the Council of the state of construction as at 19 January 2000 show brickwork on the lower level (being the level which has not been permitted), although the two permitted levels were at the frame stage. The verandah posts on the east elevation were in place, but only up to its floor level. By 17 April 2000, some internal lining had been done, but the outer walls had not been constructed. There was no roof structure.

182. The outer edge of the verandah, the framing for the walls, and the unauthorised lower level were all in place at the date of the first letter of demand from Maddock Lonie & Chisholm. The owners could have measured their setbacks (the 2.1 metres setback from the eastern boundary being one of the points fixed from the endorsement of the plans under the permit). They must already have known that the unauthorised lower level was not shown on their endorsed plans. The fact that Mr Cleeland has the additional responsibility of being the builder, and must be assumed to have the capacity to take measurements of this nature, and to read the plans he himself had submitted to the Council when he was seeking a permit, adds to his responsibility for non-compliance with the permit. If he had acted to remedy the breaches promptly in January 2000, he would have had far less remedial work to do than he has now.

183. The Calderwoods commenced their own Application on 27 April 2000. The Council's photographs illustrate the extent of work that had proceeded since January 2000. The Council had already commenced its own Application, so that further work done on a structure that the Council had identified as being in breach of the permit was already at risk as far as the owners were concerned.

184. The Calderwoods' Application, together with the enforcement order application, would have come on for hearing (after already having been the subject of a compulsory conference) on 2 August 2000 but for the owners' application for an adjournment, and the subsequent "agreement" reached on that date.

185. With respect to the ground relating to the granite reef, the Council referred to the finding of Deputy President Macnamara in Maher v Mornington Peninsula Shire Council (1998) 22 AATR 152 at 155, in similar circumstances, that a change in the applicant's state of knowledge did not fall within Section 87(1)(d) as a material change of circumstances which has occurred since the grant of the permit. The granite was always there. What changed was the owners' knowledge of it.

186. We do not find it necessary to decide that there could never be a case in which a hidden fact coming to light could not constitute a material change of circumstances for the purpose of Section 87(1)(d). In this case, we believe it would be more accurate to say that the owners' knowledge of the extent of the granite on their property changed when they started to excavate. Having lived on the site for some years, they must have known that there was rock on it, if only from their experience with gardening and their observation of eroded places on the downhill slope. Such patches are apparent in the "before" aerial photograph provided by the Council, showing part of the subject land and the Calderwoods' adjoining property in abut 1990. Knowing that they would have to excavate substantially in order to obtain a flat space for the floor of their new building, it would have been reasonable for Mr Cleeland as builder as well as co-owner to have established the extent of the rock before applying for the permit.

187. We therefore consider that it would be inappropriate to amend the permit so as to confer a benefit on Mr and Mrs Cleeland on the ground related to the granite reef. It does not necessarily follow, however, that the reef cannot be used as a ground on which to base either a cancellation or an amendment in favour of a neighbouring owner who was not given notice of the permit application.

188. Mr Appudurai raised the issue of the extent of the Tribunal's power to order changes to the building under Section 87 when the change was not related to the subject-matter of the ground on which the Application was brought. More precisely, the argument relates to the power of the Tribunal to order amendments related to grounds of amendment which the Tribunal does not accept. He submitted that any amendments that flowed from changes to the floor levels would be within jurisdiction, but contested the Respondents' alternative grounds of amendment. It therefore followed that the changes flowing from the effect of the granite reef and the Respondents' desire to change the roof trusses were not within jurisdiction.

189. Mr Taylor submitted that so long as a relevant ground was established, the Tribunal's orders did not have to be linked to any particular ground. While this proposition is too wide for us to readily accept, we acknowledge that the powers available to the Tribunal under Section 87 are wide. In this instance, the Section 87 Application is only one of the two related Applications. The other is the enforcement order Application. If the Respondents were ordered to comply fully with their endorsed plans, very substantial changes to the building would be necessary. To mention only one arising from the ground of amendment conceded by Mr Appudurai, the upper floor level would have to be lowered. We are satisfied that the combination of the Applications enables the permit to be amended in a manner that the Tribunal regards as achieving satisfactory compliance with the current Planning Scheme and permit, in order to produce a fair result to the affected parties. For the same reason, it would be inappropriate to refuse to make an order under Section 87 on the ground that the Application was not made as soon as practicable under Section 89(3) of the Act.

190. Mr Calderwood agreed that the erection of an opaque screen at the upper level assisted in minimising overlooking, but objected that it brought the vertical structure closer to his house. The screen looks quite solid, and fills in the spaces between the verandah posts so as give the impression of a solid wall in terms of bulk, even though the screen material is not very substantial. Mr Calderwood had not been aware before the hearing started that there had been changes to the roof line or to windows (apart from the windows he had discussed with Mr Cleeland). He was not concerned about internal changes or about changes to the roller doors.

191. We agree with Mr Calderwood that the filling in of the verandah's open side merely emphasises the bulk and height of the building near the Calderwoods' boundary. The material used is in any event unsatisfactory, as it bears no relationship to the structure of the building, and look as if it has been stuck on as a temporary screen.

192. We do not accept that a line of fast-growing trees down the boundary would be a totally effective screen, as contended by Mr Cleeland in his evidence. We do not consider that trees tall and thick enough at maturity to be an effective screen would be able to fit into the narrow space between the outer edge of the as-built structure and the boundary line. There was no evidence regarding the necessary sight lines for this proposal to be workable. In order for trees to screen the upper level of the building, we would expect them to require some years of growth, even if advanced specimens were planted. The additional space available if the verandah is cut back will assist in establishing an effective screen of vegetation to minimise the visual impact of the remaining structure.

193. We have concluded that the new dwelling has been constructed in breach of the permit, and that this is a case where an enforcement order should be made.

194. However, having regard to the fact that only the eastern end of the building presents an unacceptable impact on the amenity of the Calderwoods, we are prepared to amend the permit so as to authorise most of the as-built elements of the building. The enforcement order will be directed to completion of the development in accordance with modified plans.

195. The impact of height, bulk and proximity of this large structure upon its eastern neighbours is an unacceptable impact on their amenity. Overlooking, and an excessive degree of overshadowing, are additional disbenefits. Further amendments are required before the plans submitted with the Section 87 Application are acceptable.

196. We will therefore exercise the power of amendment subject to conditions requiring further modifications.

197. The verandah on the eastern side of the new dwelling as shown on the first floor plan on plan ref. 97025.1B "Section 87 plan" must be modified as follows:

? The line representing the eastern wall shall be extended north and south until it intersects with the outer edge of the verandah. All parts of the verandah east of that line shall be deleted

? The verandah as shown on elevations shall be modified to reflect the required deletion.

198. This is in accordance with the proposal tendered by Mr McCaffrey during the hearing, in the form of copies of the relevant parts of the plans with the modifications sketched in. It is more demanding than the original offer made by Mr Cleeland in August 1999.

199. As the diagrams provided by Allied Building Services with a letter to Mr Cleeland dated 25 September 2000 show that the design of the house roof is independent of the verandah roof in terms of drainage, and is designed without eaves, we do not consider it practicable to allow for eaves to be constructed on the eastern side in place of the verandah.

200. While we consider the changes to the windows in the approved lower level to be acceptable, we consider that the lower level deck, from which views across to the Calderwoods' terrace and living room windows are available, also requires some screening. A view from the north end of the deck is available upwards to the Calderwoods' terrace and house. Blocking the end of the deck with a strip of what appears to be fibre glass is not in our view an adequate solution. Cutting the deck back at the northern end to a point found by extension of the eastern wall, as in the case of the upper floor, and erecting a screen at the end is a better solution. We will require that the outer edge of the deck on the eastern side of the new dwelling, and its south end, should be screened with a timber trellis to a minimum height of 1.6 metres.

201. We not consider that anything further is required by way of screening at the south end of the dwelling in the vicinity of the south window of bedroom 4. There is no decking there, and the angle of view is sufficient protection.

202. The extent of glass wall in the upper storey on the eastern side of the building also requires attention. The upper level is above the sensitive areas on the Calderwoods' property. Rather than require that all glass on the east elevation be replaced by highlights built to a minimum sill height of 1.6 metres, we consider that the angle of view will be adequate protection for the Calderwood property (together with the additional space available for screen planting) if sill heights to 1 metre are provided. Doors will of course be eliminated in the area where the verandah is cut back. We will therefore require that the plans be amended to show all glazing on the east and south-east elevations to commence at a height of not less than 1 metre. The angle of view on the reduced northern part of the east elevation will be sufficient protection.

203. We will also include an amendment giving approval for the as-built floor levels, which we regard as acceptable so long as the amendments which we will require are made.

204. An enforcement order will be made for submission of new plans including the changes which we will require to be made, and for the new dwelling to be brought into conformity with the further amended plans within periods that we consider to be reasonable, having regard to the fact that Mr Cleeland is the builder.

205. The Council has already made application for the owners to pay its costs in its enforcement order application. Mr McCaffrey submitted that the owners should pay his clients' costs of the same application. We will reserve costs and give directions for applications to be made. We will specify a short time, in order to attempt to have the matter disposed of before Mrs Bruce's term expires on 31 May 2001.

"List of differences" between endorsed plans and plans submitted in Application under Section 87, provided by Ms Houguet

Height of the Dwelling on the Endorsed Plans compared to the Section 87 Plans -

? The wall height at the location on elevations 1 and 2 (approx. 5.75m) on the amended plans exceeds that shown on the endorsed plans at point "M" by 0.05m. The actual wall height based on the survey data (point A) is 6.34m.*

? The wall height at the location on elevations 5 and 6 (approx. 7.2m) on the amended plans exceeds that shown on the endorsed plans at point "J" by 0.05m. The actual wall height based on the survey data (point G) is 8.28m.

? The wall height at the location on elevation 7 (approx 6.5m) on the amended plans exceeds that shown on the endorsed plans at point "K" by 0.05m. The actual wall height based on the survey data (point H) is 6.97m.

? The wall height at the location on elevation 8 (approx. 6.4m) on the amended plans exceeds that shown on the endorsed plans at point "K" by 0.25m. The actual wall height based on the survey data (point H) is 6.97m.

? The wall height at the location on elevation 7 (approx. 5.95m) on the amended plans exceeds that shown on the endorsed plans at point "L" by 0.10m. The actual wall height based on the survey data (point I) is 6.44m.

? The wall height at the location on elevations 1 and 8 (approx. 5.55m) on the amended plans exceeds that shown on the endorsed plans at point "I" by 0. 10m. The actual wall height based on the survey data (point J) is 5.74m.

? The RL level of the first floor of the "as-constructed" dwelling exceeds the level approved in the endorsed plans by 0.74m. No amended plans have been submitted for the floor levels of the dwelling.

? The RL level of the ground floor of the "as-constructed" dwelling exceeds the level approved in the endorsed plans by 0.44m. No amended plans have been submitted for the floor levels of the dwelling.

* Points shown thus: "M" are from the survey by Kirkpatrick & Webber. Points shown thus: (point A) are from the survey by Watsons.

Additional Changes to the Dwelling comparing the Endorsed Plan and the Section 87 Plan

Elevation 1 differs on the S87 plans from the endorsed plans in the following ways:

- Alterations to the entry treatment to include a gable

- Alteration to roof line to "solidify" the structure (i.e. remove the relief gabling

- Replacement of large roller door opening with a single door

- Increase in the depth of below natural ground level

Elevation 2 differs on the S87 plans from the endorsed plans in the following ways:

- Roof line consolidated to remove relief and include a gable

- Replacement of roller door with single door and two new windows (No. 31)

Elevation 3 differs on the S87 plans from the endorsed plans in the following ways:

Elevation 4 differs on the S87 plans from the endorsed plans in the following ways:

- Replacement of door and window with windows (No. W23)

- Alteration to roof line and inclusion of small gable

Elevation 5 differs on the S87 plans from the endorsed plans in the following ways:

- Inclusion of upper floor windows (Nos. W5 & W5A)

- Increased elevation of lower floor windows (Nos. W21 & W22)

Elevation 6 differs on the S87 plans from the endorsed plans in the following ways:

- Inclusion of sub-floor workshop area including door and window

Elevation 7 differs on the S87 plans from the endorsed plans in the following ways:

Elevation 8 differs on the S87 plans from the endorsed plans in the following ways:

- Inclusion of upper floor windows (Nos. W18A & W15)

First floor plan differs in the S87 plan from the endorsed plans in the following ways:

- Deletion of wall between parents' retreat and sewing room

First floor plan differs in the S87 plan from the endorsed plans in the following ways:

- Replacement of roller door with door and window (W31A)