These setbacks from New Summit Road are to be measured from a line that is parallel with the north-west intersect of the land with New Summit Road.

(b) Measures to protect public safety and amenity in the areas between the proposed building and surrounding land on the west, south and east. This must include detail and measures in relation to snow shed.

(c) The gap between Chalet 2 and Chalet 3 at Level 5 to be increased to at least 4 metres.

(d) Any amendments to the plans required to comply with condition 15.

(e) Any amendments to the plans required to comply with condition 2.

1. A detailed materials and colour schedule must be prepared and provided to the satisfaction of the responsible authority. When approved by the responsible authority, this schedule will form part of this Permit. The Schedule must include a minimum of 15% additional stonework (or other appropriate material to the satisfaction of the responsible authority) to the following:
   • (a) The front façade to New Summit Road;
   • (b) Stonework incorporated into the new accessways and wall materials fronting Abominable Way (for example to the most upper level or the replacement of C02 with stonework);
   • (c) Stonework incorporated into the eastern façade.
   • (d) Non-reflective, muted-toned profiled metal and corrugated iron finish to the roof.

1. Prior to commencement of development, a landscape plan must be submitted to and approved by the responsible authority. When approved such plan will be endorsed as part of this permit.
2. Prior to the issue of an occupancy permit, landscaping works as shown on the endorsed landscape plans must be completed to the satisfaction of the responsible authority and then maintained to the satisfaction of the responsible authority

1. The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
2. Once the development has started it must be continued and completed to the satisfaction of the responsible authority.
3. All buildings and works must be maintained in good order and appearance to the satisfaction of the responsible authority.

Provision of services and agreements (Mt Buller Mt Stirling Resort Management Board)

1. Prior to commencement of works, an agreement must be entered into with Mt Buller Mt Stirling Resort Management Board covering:
   • (a) Location and protection of services on and in the vicinity of the site;
   • (b) Any potential relocation of services required for the development;
   • (c) Provision of services including details of connection points for gas, sewerage, storm water drainage and potable water and potential inspection requirements; and
   • (d) Geotechnical management of the site; and
   • (e) Arrangements for collection and management of garbage.

1. Prior to the commencement of the development, an amended Site Environmental Management Plan must be submitted to and be approved by the responsible authority, in consultation with Mt Buller and Mt Stirling Resort Management Board. The plan must generally be in accordance with the submitted plans but modified to show:
   • (a) Updated construction timeframe
2. All construction activity and site rehabilitation work must be constructed in accordance with the endorsed Site Environmental Management Plan (SEMP) to the satisfaction of the responsible authority and the Mt Buller and Mt Stirling Resort Management Board. All contractors working on the site must be provided with a copy of the endorsed SEMP and must retain a copy of the SEMP on-site at all times during the construction period to the satisfaction of the responsible authority.

Site Management, Stockpiling, Material Storage and Waste

1. Stockpiles of soil, building materials or waste are not to be located on top of areas of native vegetation.
2. All earth-moving equipment and other machinery must be cleaned of soil and plant material before entering and leaving the site to prevent the spread of weeds and pathogens.
3. All stockpiling and building material storage, fencing and signage must ensure safe pedestrian access.
4. All materials and waste must be appropriately managed, contained and removed.

1. The layout of the carpark and access must comply with Clause 52.06 of the Planning Scheme or the applicable Australian Standards to the satisfaction of the responsible authority.

Wastewater Management Plan (Mt Buller Mt Stirling Resort Management Board)

1. Prior to commencement of works, a waste management plan illustrating how different waste types (including excavated material) will be separated and disposed of must be agreed with Mt Buller Mt Stirling Resort Management and submitted to the responsible authority for approval. When approved, the waste management plan will be endorsed and will form part of the planning permit.

Storm Water (Mt Buller Mt Stirling Resort Management Board)

1. Existing and proposed storm water flows from within the site or discharging into the site from adjoining areas must be connected directly into the existing underground storm water system to the satisfaction of Mt Buller Mt Stirling Resort Management Board.

Weed Management (Mt Buller Mt Stirling Resort Management Board)

1. The applicant must ensure that any weeds within the site are effectively managed in perpetuity in consultation with Mt Buller Mt Stirling Resort Management Board.

Works and Construction Management (Mt Buller Mt Stirling Resort Management Board)

1. All external activity shall cease and the site shall be left in a clean and tidy condition:
   • (a) for the period between Christmas Day and New Year's day inclusive; and
   • (b) for the Easter holiday period; and
   • (c) for the duration of any major events occurring within the Mt Buller resort as may be notified by Mt Buller Mt Stirling Resort Management Board from time to time; and
   • (d) from 15 May to the end of the declared snow season unless the responsible authority consents in writing to another date after consultation with Mt Buller Mt Stirling Resort Management Board

Department of Environment, Land, Water and Planning (Environment)

1. The development as shown on the endorsed plans must not be altered without the written consent of the Department of Environment, Land, Water & Planning.
2. Before works start, the permit holder must advise all persons undertaking the vegetation removal of all relevant conditions of this permit.
3. The construction footprint must be to the minimum required to retain and protect the greatest area of native vegetation. All native vegetation to be retained should be properly protected from all construction and operational works.
4. No trees are to be removed under this permit.
5. All works, including silt runoff management and machine hygiene must comply with the project SEMP.
6. All rehabilitation measures involving replanting must use local indigenous species.

1. The applicant must enter into an agreement with Buller Gas for the re-arrangement of any services affected by the development.

1. The applicant must:
   • (a) Enter in an agreement with AusNet Electricity Services Pty Ltd for supply of electricity to each lot on the endorsed plan.
   • (b) Enter into an agreement with AusNet Electricity Services Pty Ltd for the rearrangement of the existing electricity supply system.
   • (c) Enter into an agreement with AusNet Electricity Services Pty Ltd for rearrangement of the points of supply to any existing installations affected by any private electric power line which would cross a boundary created by the subdivision, or by such means as may be agreed by AusNet Electricity Services Pty Ltd.
   • (d) Provide easements satisfactory to AusNet Electricity Services Pty Ltd for the purpose of "Power Line" in the favour of "AusNet Electricity Services Pty Ltd" pursuant to Section 88 of the Electricity Industry Act 2000, where easements have not been otherwise provided, for all existing AusNet Electricity Services Pty Ltd electric power lines and for any new power lines required to service the lots on the endorsed plan and/or abutting land.
   • (e) Obtain for the use of AusNet Electricity Services Pty Ltd any other easement required to service the lots.
   • (f) Adjust the position of any existing AusNet Electricity Services Pty Ltd easement to accord with the position of the electricity line(s) as determined by survey.
   • (g) Set aside on the plan of subdivision Reserves for the use of AusNet Electricity Services Pty Ltd for electric substations.
   • (h) Provide survey plans for any electric substations required by AusNet Electricity Services Pty Ltd and for associated power lines and cables and executes leases for a period of 30 years, at a nominal rental with a right to extend the lease for a further 30 years. AusNet Electricity Services Pty Ltd requires that such leases are to be noted on the title by way of a caveat or a notification under Section 88 (2) of the Transfer of Land Act prior to the registration of the plan of subdivision.
   • (i) Provide to AusNet Electricity Services Pty Ltd a copy of the plan of subdivision submitted for certification that shows any amendments that have been required.
   • (j) Agree to provide alternative electricity supply to lot owners and/or each lot until such time as permanent supply is available to the development by AusNet Electricity Services Pty Ltd. Individual generators must be provided at each supply point. The generator for temporary supply must be installed in such a manner as to comply with the Electricity Safety Act 1998.
   • (k) Ensure that all necessary auditing is completed to the satisfaction of AusNet Electricity Services Pty Ltd to allow the new network assets to be safely connected to the distribution network.

1. The development must comply with the Schedule to the Bushfire Management Overlay (Alpine Resorts Planning Scheme, 31/07/2014-VC109) at all times.
2. Recommendations made in the Bushfire Management Statement prepared by "Terramatrix, dated November 2015" must be implemented into the final design of the development and ongoing management of the site.

1. The bushfire mitigation measures forming part of this permit or shown on the endorsed plans, including those relating to construction standards, defendable space, water supply and access, must be maintained to the satisfaction of the responsible authority on a continuing basis. This condition continues to have force and effect after the development authorised by this permit has been completed.

1. All construction and ongoing activities must be in accordance with sediment control principles outlined in 'Construction Techniques for Sediment Pollution Control' (EPA, 1991).

1. The works allowed under this permit must be completed in accordance with the control measures of Table 2 and recommendations of section 3.7 of the document prepared by GHD titled Site 237 Mt Buller, Preliminary Geotechnical Risk Assessment, October 2016.
2. Upon completion of the works, and within 6 months after occupation of the building, written certification must be provided to Mt Buller Mt Stirling Resort Management and the responsible authority verifying that the above condition has been met; and
3. Upon completion of the works, and within 6 months after occupation of the building, a report detailing any requirements for ongoing monitoring must be prepared by a suitably qualified and experienced geotechnical practitioner (as defined in Clause 3.0 of the Erosion Management Overlay Schedule 1 of the Alpine Resorts Planning Scheme) must be submitted to the responsible authority for approval in consultation with Mt Buller Mt Stirling Resort Management. Any recommendations of the report must be implemented.
4. Prior to the commencement of any excavation, (other than excavation required to comply with this condition a specialist Geotechnical Engineer or Engineering Geologist with a degree as defined in clause 3.0 of Schedule 1 to the Erosion Management Overlay [Geotechnical Engineer] and who is a Registered Practitioner registered by the Building Control Commission with expertise in slope stability, must undertake a detailed geotechnical investigation of the land and prepare a report to the satisfaction of the responsible authority which details the measures to be undertaken to prevent any increase in risk of landslip or land instability as a consequence of the construction of the permitted development. The measures should be generally in accordance with the matters outlined in the report prepared by GHD titled: 'Site 237 Mt Buller, Preliminary Geotechnical Risk Assessment' dated October 2016 (the GHD report). When approved, the report will be endorsed and then form part of the permit. The geotechnical investigation and report must include and deal with (although not limited to) the following:
   • (a) a slope stability assessment in accordance with the Australian Geomechanics Society (AGS) references called "Landslip Risk Management Concepts & Guidelines March 2000" and "Geotechnical Risks Associated with Hillside Developments May 2002" or updated by the AGS and Australian Standard AS 1726;
   • (b) the presence of any fill on the land;
   • (c) the site classification in accordance with Australian Standard AS 2870;
   • (d) the foundation design parameters;
   • (e) the impact, if any, of the excavation and construction on the stability of the site and surrounding lands;
   • (f) the treatment and drainage of stormwater, groundwater and surface flows and the impact, if any, to slope stability;
   • (g) the impact, if any, of leakage from underground services;
   • (h) the appropriate foundation system such foundation system to comply with the requirements in condition 36;
   • (i) the appropriate ground retention system during and after construction taking into account potential time frames and having regard to the potential exposure to a variety of extreme weather conditions;
   • (j) the risk to Abominable Way and to the properties to the south adjacent to the site;
   • (k) a survey of levels on Abominable Way and the adjacent properties to the south, including permanent markers, as a basis for post construction monitoring.
5. The Applicant must pay all reasonable costs incurred by the responsible authority associated with obtaining a peer review of the geotechnical investigation and report and carry out all recommendations in the peer review to the satisfaction of the responsible authority.

Design and construction of foundations, footings and earthworks

1. The design and construction of retaining walls and earthworks must be undertaken by an appropriately qualified structural and/or geotechnical practitioner under the direct supervision of a Geotechnical Engineer and to the satisfaction of the responsible authority to ensure that the development does not destabilise any public assets or adjoining property, soils or structures.
2. Before foundations are laid, the foundation excavations must be inspected by a geotechnical engineer to confirm the presence of competent foundation material and to determine whether the condition of the foundation material has been affected by the excavation activities.
3. The design and construction of foundations, footings and earthworks must be undertaken in accordance with the following requirements:
   • (a) Construction and earthworks at the site are to be undertaken during dry periods of weather;
   • (b) Excavation methods adopted should consider how to minimise the effect on any rock anchors;
   • (c) The wall to L0 Car park level is to be designed to retain slope as indicated in plan SK10 of the design drawings prepared by Salter Architects;
   • (d) The finished slope adjacent to wall to L0 Car park level must make provision for storm water flow down the shotcrete slope and the base graded to encourage flow around building, to the side;
   • (e) The outfall apron of rip rap is to be built either side of the building to reduce the risk of scour;
   • (f) Footings for the development must be designed to ensure maximum bearing pressure does not exceed 250kPa.

Geotechnical Engineer's inspections and survey

1. The Head Lessee of the site must cause to be undertaken an inspection and survey of the site and of Abominable Way and of the adjacent properties to the south by a Geotechnical Engineer. Such inspection must be carried out on the 12-month anniversary of the issue of an Occupancy Permit or within 21 days before or after that date.
2. An inspection report of the Geotechnical Engineer containing observations and any recommendations for required actions is to be submitted to the responsible authority within 21 days of the carrying out of the inspections and the required actions implemented within a reasonable period to the satisfaction of the responsible authority.
3. If within five years of the issue of an Occupancy Permit there is an earth movement considered to be significant in the opinion of the Geotechnical Engineer in ground conditions on the site, on Abominable Way or any adjacent land caused by the carrying out of the development and associated earthworks the Head Lessee of the site must within a reasonable period have a report prepared by a the Geotechnical Engineer with recommendations to respond to the earth movement to the satisfaction of the responsible authority.
4. Any recommended response in any report of the Geotechnical Engineer which identifies earth movement that has been caused by the development permitted must be implemented by the Head Lessee within a reasonable period and to the satisfaction of the responsible authority.
5. The Head Lessee and the Geotechnical Engineer must authorise the responsible authority to make public any report produced in accordance with the requirements of this permit and authorise the responsible authority to provide copies to persons with an interest in any adjacent site.

Maintaining the low risk rating of the proposed works

1. To manage and maintain the assessed low risk rating of the proposed works implement the Head Lessee must implement the following risk control measures detailed in the GHD report (Table 2):
   • (a) A Geotechnical Engineer is to be engaged to visually inspect the existing wall on the site prior, during and after excavation works at the site to verify an appropriate level of durability protection;
   • (b) The methodology of excavating basalt at the site is to prioritise excavation via scraping over jackhammer excavation methods.
   • (c) Future development of the site should incorporate good hillside construction practice and allow for a permanent solution for drainage, in conjunction with safe disposal of all on site stormwater;
   • (d) Maintain effective and suitable drainage around the site and subsurface drainage around foundations;
   • (e) Prevent uncontrolled flows over the face of the wall;
   • (f) Visually monitor for signs of seepage from the wall near the south western corner. Should seepage be identified associated with installed drainage holes a suitably experienced geotechnical professional should be engaged to investigate further;
   • (g) While the site remains vacant the existing monitoring program consisting of annual survey of remaining monitoring points, and visual inspection for signs of distress including cracking and seepage not coming from installed drains must be maintained;
   • (h) Inspect and flush subsoil drains as soon as possible, and continue to do so on an annual basis;
   • (i) If future development of the site involves keeping the existing wall, then ensure the requirements for building design and ongoing maintenance as detailed in the Coffey report (2007), Appendix F, Geotechnical Specifications are adhered to.

1. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two (2) years of the date of this permit.
   • (b) The development is not completed within four (4) years of the date of this permit.

In accordance with section 69 of the Planning Environment Act 1987, the responsible authority may extend the permit if:

(c) a request is made in writing before the permit expires;

(d) or within six months afterwards.

The responsible authority may extend the time for completion of the development if a request is made in writing within 12 months after the permit expires and the development started lawfully before the permit expired.

[1] Third-party exemptions apply with respect to the Erosion Management Overlay and Bushfire Management Overlay.

[3] We refer to the frontage to Abominable Way as south and the frontage to New Summit Road as north.

[4] We have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. We do not recite or refer to all of the contents of those documents in these reasons.

[5] Zacamoco Pty Ltd v Minister for Planning [2007] VCAT 1023. Permit 2006/0413.

[6] The objectors opposed the substitution of plans. For reasons given orally at the hearing, we granted leave to substitute the plans as reflected in our order.

[7] Knox City Council v Tulcany Pty Ltd [2004] VSC 37.

[8] Cls 21.05, 22.01 and 22.05. In addition there are a number of other documents to which we have been referred, such as the Design Guidelines 2005 for the Mt Buller Alpine Resort Village and the Master Plan 2010.

[9] The commercial area is marked in yellow in the scheme.

[10] Area 2 is identified as a gateway site mixed commercial/ accommodation/ carpark/ administration/ retail. Area three is identified as mixed commercial/retail/accommodation.

[11] No party objected to the Tribunal, as constituted with a presiding member who is not a lawyer, determining this question. Cl 66 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 states (inter alia) that despite s 107(1) if the Tribunal is constituted for the purposes of a proceeding under a planning enactment without a judicial member or a member who is an Australian lawyer, a question of law arising in the proceeding may be decided by the presiding member unless the parties that are present at the hearing of the proceeding disagree.

[12] Zacamoco Pty Ltd v Minister for Planning [2007] VCAT 1023, [32], [33], [48].

[13] Zacamoco Pty Ltd v Minister for Planning [2007] VCAT 1023, [11].

[14] Objectors' written submission, [22] at page 6-7.

[15] Sprut Pty Ltd v Stonnington CC [2012] VCAT 167.

[16] Sprut Pty Ltd v Stonnington CC [2012] VCAT 167.

[17] Amoco v Berwick SC (1983) 1 PABR 166.

[18] K & B Reichert v City of Banyule & Ors (1996) VICCAT 44.

[19] Conlan v Whitehorse CC [2014] VCAT 1009.

[20] This is relevant to the usual visible is considered in repeat appeals, often called the Reichart principles, where it is relevant when reviewing an application that is similar to a proposal that has been the subject of previous Tribunal findings significant changes in the application itself, changes in the circumstances of the land and its surrounds, changes in planning policy, and/or, changes in the interpretation of the facts or law relevant to the Tribunal's consideration.

[21] This was in construction at the time of the previous decision.

[24] Which we note is in the residential area and not the commercial area.

[26] Such as Tashounidis v Shire of Flinders & Ors 1 ATR 11; Healy v Surf Coast SC [2005] VCAT 990.

[27] Wright v Greater Geelong CC [2013] VCAT 2092 at paragraph 11.

[28] Healy and Ors v Surf Coast SC [2005] VCAT 990, [21].

[29] Wright v Greater Geelong CC [2013] VCAT 2092, [11].

[30] Healy and Ors v Surf Coast SC [2005] VCAT 990, [15].

[33] The decision guideline under building height refers to 'site' rather than 'sites'.

[35] The author was not called by the permit applicant to present the evidence. No party sought to pursue questions in relation to this report.