The land in Certificates of Title Volume 8112 Folio 950 and Volume 8636 Folio 765.

A. Request for permit amendment 2000/33540 is granted and Permit 96-325 is amended so that its conditions will read as follows:-

1. Before the development starts, a plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plan must be in accordance with the plan prepared by Peter Herbert and Associates (Vic) Pty Ltd reference 3350 D1 (version 4). When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three (3) copies must be provided. The plan must show:

(b) Landscaping details including a minimum three (3) metre landscape buffer around the side and rear boundaries of the site, a landscape buffer around the crusher area and a landscape buffer separating the car sales area (located at the Warrandyte Road frontage of the land between the two existing dwellings) from the lanes of stacked cars further to the east. Additional landscaping details to be shown must include existing vegetation to be retained and the type and location of proposed vegetation. The type of proposed vegetation should be shown in a planting schedule. The species selected for planting should be fast growing, indigenous to the area and of a variety of growth habits to screen the use from adjoining properties, (note: a full screen is intended to be achieved within 5 years of the date of this permit).

(e) Delineation of the two titles that comprise "the site".

(f) A detailed outfall drainage plan identifying existing overland flow paths and proposed drainage works prepared by a suitable consultant who is to be to the satisfaction of the Responsible Authority.

(g) A notation stating that native vegetation on site must not be removed without the written consent of the Responsible Authority.

(h) Details of all perimeter fencing, including fencing around the crusher area.

(i) The area where the crusher is to be located and where vehicles are to be crushed to be denoted as "the crusher area".

2. All buildings and works shown on the endorsed plans must be completed within six (6) months of the date of this permit.

3. Existing external lighting on Warrandyte Road must be buffered to prevent direct light into adjacent residential areas.

4. (a) The areas set aside for parked customer and staff vehicles and access lanes shown on the endorsed plans must be:

(i) Constructed to the satisfaction of the Responsible Authority.

(ii) Properly formed to such levels that they can be used in accordance with the plans.

(iii) Surfaced with crushed rock or gravel and treated to prevent loss of amenity to the neighbourhood by the emission of dust and the discharge of drainage.

(iv) Drained and maintained to the satisfaction of the Responsible Authority.

(b) Parking areas and access lanes must be kept available for these purposes at all times.

5.(a) Landscaping works as shown on the endorsed plans must be completed within six (6) months from the date of this permit to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

(b) The areas set aside for landscaping must not be used for any other purpose.

(c) Native vegetation on site is not to be removed without the written consent of the Responsible Authority.

6. The side and rear boundaries of the land must be fenced in accordance with the endorsed plans and such fencing must be maintained to the satisfaction of the Responsible Authority.

7. Cars are to be stacked no higher than three (3) metres in all areas except the crusher area where cars may be stacked no higher than three and a half (3.5) metres.

8. Wrecked cars are only to be stored in the designated areas identified on the endorsed plans and the access aisles between these storage areas must be maintained to the satisfaction of the Responsible Authority.

(a) No water is to be discharged from the site other than by means of an underground pipe drain discharging to an approved outlet in a street or to an underground pipe drain.

(b) Flow rates from the site must be retained at existing rural flow rates to the satisfaction of the Responsible Authority and Melbourne Water.

(c) An interceptor and retarding/settling pond must be installed to catch all oil, silt, and other contaminants and they must be designed, installed and maintained to the satisfaction of Melbourne Water and the Responsible Authority.

(d) Plans of outfall drainage works must be prepared by a suitable consultant to the satisfaction of the Responsible Authority and approved by and be constructed to the satisfaction of the Responsible Authority and Melbourne Water.

(e) All drainage must be connected to Melbourne Water Drainage system at the owner/developer's cost in accordance with plans and specifications submitted to and approved by the Responsible Authority and Melbourne Water.

10. The crushing of vehicles must only take place in the "crusher area" location which is shown on the endorsed plan.

11. Within two (2) months of the date of the amendment of this Permit in accordance with the direction of the Victorian Civil and Administrative Tribunal in its determination Request proceedings 2000/33540, the owner of the land must enter into an agreement with the Responsible Authority pursuant to section 173 of the Planning and Environment Act 1987 which reflects the owner's agreement to undertake the buildings and works as specified in the conditions of this Permit according to the terms, and within the time period, specified in this Permit. The full cost of preparation and registration of this agreement will be borne by the owner of the land.

B. The Responsible Authority is directed pursuant to s 91(1) of the Planning and Environment Act 1987 to amend the said permit in accordance with order A above.

C. By consent the Responsible Authority is granted leave to withdraw Enforcement Order Application 1999/24121 and that application is withdrawn pursuant to that leave.

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Ms Adeline Lane, solicitor of the firm of Maddocks, solicitors, appeared for the Responsible Authority.

Mr John McMullan, solicitor of the firm of McMullans, solicitors, appeared for the Respondents.

Mr T Weerappah, solicitor of the firm of Stidston & Williams Weblaw, solicitors for K Dickens and I Check.

Application under s114 of the Planning and Environment Act 1987 (PE Act) for an enforcement order.

Request under s 87 PE Act for amendment of a permit.

The carrying out of works being tree removal, filling of a dam, filling of land and the creation of tracks on the land without a permit required for such works under the continuing use provisions of the Planning Scheme or, alternatively, the carrying out of works contrary to the provisions of Planning Permit 69-325 issued by the Responsible Authority at the direction of the Administrative Appeals Tribunal in its determination of Planning Appeals 1997/14018 and 1997/86823 on the 17 October 1997.

Amendment of the conditions of the said permit 96-325.

Low Density Residential Zone under the Frankston Planning Scheme.

1. These cases were before the Presiding Member and Dr Mainwaring on the 8 May 2000. Subsequently an interim determination in relation to the cases dated 12 May 2000 was issued. There was an extensive discussion under the subheading "Remarks" attached to that document. It was anticipated, at that stage, that these proceedings would be able to be resolved after a short delay, and effectively by consent of the parties. The merits of the contemplated solution were considered at that stage. In fact, in paragraph 29, a draft of the form of the contemplated permit and conditions were set out. It was anticipated that there would either be an application for a new permit or that the existing permit would be amended so that the conditions matched those in the draft with the additional wording for condition 9 in the draft which, at that stage, was left blank.

2. At the hearing on the 1 May 2002, after far more delays and difficulties than originally anticipated, that was the situation arrived at. The parties consent to an amendment to the existing permit so that the conditions of the permit will match those set out in the order above. That order includes wording for condition 9 and an additional condition No. 11.

3. Having reviewed the case we are willing to grant the request for amendment in accordance with the agreement between the parties. In doing so we rely on the added ground under s 87(1)(d) PE Act namely material change in circumstances since the grant of the permit, rather than the ground originally relied on which was that under s 87(1)(b) namely substantial failure to comply with conditions. The question of grounds was discussed in May 2000 and the new ground under s 87(1)(d) was added then.

4. The agreement between the parties extended to the inclusion on the permit of two notes which are recorded in correspondence from the Responsible Authority. The second of these notes concerns an administration fee. Doubts were expressed about that note at the hearing in May 2000 and there is some mention of it in paragraphs 30 and 31 under the remarks in relation to that hearing. In fact it was indicated that the request for inclusion of the second note was withdrawn. We continue to regard that second note as an inappropriate inclusion. However, as such notes are not part of the permit proper, they do not form part of our order in relation to these proceedings.

5. At the hearing we indicated our willingness to accede to the request in the terms indicated. On that basis Ms Lane, on behalf of the Responsible Authority sought leave to withdraw the enforcement order application. With the consent of the other parties such leave is granted and that application will be withdrawn accordingly.

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