1 Pursuant to section 149B of the Planning and Environment Act 1987 I declare that the Significant Landscape Overlay No 1 applies to the subject land as shown in the plan attached to this order "RA-1" which was determined by Ronald Joseph Mildren, General Manager, Environmental Planning at the Colac-Otway Shire Council on 23 June 2004.

2 I direct the Responsible Authority to amend planning permit P02/030 issued on 15 August 2002 by deleting clause 15 and substituting the following condition:

a. A landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority by 1 December 2004. When approved, the plan will be endorsed and will then form part of the permit. The plan must be prepared by a qualified landscape architect experienced in rural landscape. The plan must be drawn to scale with dimensions and 3 copies must be provided. The landscape plan should:

i. provide a backdrop to the house so that in the longer term the silhouette of the house on the ridgeline is broken by trees and other vegetation.

ii. take account of the future of the extractive industry operations on the land and the long term land form that will result from these operations.

iii. effectively blend the development into the surrounding area.

iv. provide predominantly native species of trees that will grow to a height above the roof level.

v. use a mixture of low, medium and high growing trees and shrubs.

vi. provide a planting schedule of all proposed trees, shrubs and ground covers including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.

b. The landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority by 1 December 2005.

c. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, deceased or damaged plans are to be replaced.

3 I direct the responsible authority to amend the endorsed plans to planning permit P02/030 to accurately reflect the dwelling as constructed and its true location.

4 Order 1 of the Tribunal's order dated 16 June 2004 is cancelled.

6 Written submissions regarding any application for costs should be served on other parties and filed with the Tribunal by 17 August 2004.

Mr Chris Taylor, Solicitor, of The Partners Advisory Pty Ltd. He called as a witness Phillip Roy Boyd who gave evidence on oath

1 Application P1265/2004 is an application for declarations from the Tribunal pursuant to section 149B of the Planning and Environment Act 1987. The application was amended during the course of the proceedings and the declaration which is now sought relates to how the Significant Landscape Overlay should be applied to the subject land.

2 Application P1504/2004 is an application pursuant to section 87 of the Planning and Environment Act 1987 to cancel or amend planning permit No P02/030 issued on 15 August 2002 by the Colac-Otway Shire Council on the grounds that there was a failure to give notice in accordance with section 52 of the Act. The applicant, Murray Kidman, makes the application pursuant to section 89(1)(a) of the Act as a person who believes that they should have been given notice of the application for the permit and was not given that notice. This application was lodged with the Tribunal on 4 June2004. It was accompanied by an application for an order to stop development pursuant to section 93 of the Act.

3 By order dated 16 June 2004, the Tribunal placed a stop order on the subject land. Upon the applicant giving an undertaking as to damages, the Tribunal ordered that:

1. Pending the hearing of the request to cancel or amend the permit in application P1504/2004, no development or works pursuant to planning permit P02/030, save and except for the three lot consolidation and resubdivision, is to be carried out or continued on the subject land.

7. The respondent/responsible authority must determine the boundaries of the Environmental Significance Overlay 2 and Significant Landscape Overlay 1 with respect to the subject land pursuant to Clause 61.06 of the Colac-Otway Planning Scheme. For the purpose of this order the subject land is the whole of the land to which planning permit P02/030 applies. The respondent/responsible authority must serve on the applicant and other parties and file with the Tribunal a copy of its determination of boundaries by 25 June 2004.

5 In accordance with order 7 of the Tribunal's orders dated 16 June 2004, the responsible authority determined the boundaries of the Environmental Significance Overlay 2 and Significant Landscape Overlay 1 with respect to the subject land pursuant to clause 61.06 of the Colac-Otway Planning Scheme. A copy of the responsible authority's determination in respect of those boundaries is attached to this order and marked "RA-1".

6 The Tribunal further ordered on 16 June 2004 that the Department of Sustainability and Environment at Colac and the Corangamite Catchment Management Authority should also be served with the applications for review in both these matters. By letter dated 2 July 2004 to the solicitor for the applicant, Roger Macaulay, Manager, Crown Land Management South West Region, Department of Sustainability and Environment, stated:

"Thank you for your letter dated 16 June 2004 relating to the above case.

Department officers inspected this site and acknowledge that this dwelling is sited on a prominent ridgeline and can be seen from a wide range of vantage points, including public land areas at Red Rock, Lake Corangamite and surrounding roads. It was also noted that ridgelines in the area remain relatively undeveloped as the majority of dwellings and associated buildings in this area are sited below ridgelines.

Whilst the Department believes that this dwelling is poorly sited, it would be difficult for the Department to sustain an argument that demonstrates a significant landscape impact from public land viewing points.

Ideally, the Department prefers that dwellings and other developments be sited below ridgelines to minimise visual impact. In this case the dwelling could have been sited closer to Lineens Road. The Department believes that by appropriate visual screening, such as by planting vegetation coupled with the construction of earthen bunds, that the visual impact of this development may be reduced.

Unless requested by VCAT, the Department does not wish to be joined to the proceedings of 8 July 2004.

If you have any queries relating to this matter, please contact Michael Noelker at the Department's Anglesea Office on telephone 03 5263 3712."

7 The subject land known as 174 Lineens Road, Corunnun, has an area of 32.76 hectares and is the whole of the land in Certificate of Title Volume 9085, Folio 861 being part of Lot 2 on Plan of Subdivision No 77507 and being part of Crown Allotments 19A and 19D and Part of Crown Section 20A Parish of Warrion County of Polwarth. The land is used as a gravel extraction pit and has an existing house close to Lineens Road towards the eastern boundary of the land.

8 The registered proprietors of the subject land are Kenneth Rae Broadbent and Margaret Patricia Broadbent. There is a caveat registered on the Title protecting the interest of Phillip Roy Boyd and Steven John Lang as purchases of an estate in fee simple.

9 On 23 January 2002 the Boyd/Lang Unit Trust lodged an application for planning permit with the responsible authority for "dwelling, 3 lot consolidation and 3 lot resubdivision". The boundaries of the proposed 3 lot subdivision were the same as the boundaries of the 3 lots shown in annexure "RA-1". The larger lot shown on annexure "RA-1" should be marked as Lot 1 not Lot 3. It has an area of 23.52 hectares and contains the existing dwelling. Lot 2 has an area of 6.864 hectares and contains the existing gravel extraction pit. Lot 3 has an area of 2.376 hectares. The plan accompanying the permit application showed a hand drawn outline of a dwelling close to the northern boundary of Lot 3 but included no dimensions by which the exact location of the dwelling or its size could be ascertained.

10 No advertising of the permit application was required nor was it referred to any referral authorities. The only Council report relating to the permit application is a hand written document headed "Inspection Report" dated 20 February 2002. With respect to the zoning, the inspection report states:

"RUZ, part ES02, (not over development site), part SL01, (not over development site), part WMO, part over development site but water supply available".

The following comments were made on the inspection report:

"Access available to each lot. All weather access road to proposed development site. No impact on neighbours therefore no advertising reqd. No problem with realignment boundaries. Refer out, once consent received, issue. Cond. Dense plantings around house to screen quarry."

11 A planning permit was issued on 15 August 2002 for "Construction of a Dwelling and Three (3) Lot Consolidation & Three (3) Lot Resubdivision in accordance with the endorsed plans attached and details submitted." The 3 lot plan of subdivision PS520877D was registered on 23 January 2004. I was told that the sale of Lot 3 to Judith Boyd was settled with the Broadbent's in February 2004 but the transfer has not yet been registered.

12 The plan endorsed under planning permit P02/030 was the plan submitted with the permit application, which shows the location of the dwelling without any dimensions or distances from boundaries. On 5 February 2004 amended plans were endorsed which include the plans and elevations of the proposed dwelling and a site plan which shows the dwelling located 9.49 metres (approx) from the northern boundary of Lot 3, 35 metres from the eastern boundary of Lot 3, and 190 metres from the southern (Lineens Road) boundary. These dimensions do not accord with the location in which the house has been constructed.

13 The dwelling is a four bedroom brick veneer, single storey dwelling. Construction of the dwelling commenced in February 2004 and it is now nearly complete. When the stop order was issued on 16 June 2004, the Tribunal was told the dwelling was only 3 days away from completion.

14 The subject land forms part of the rim of a scoria cone in the Red Rock area. Red Rock is an intricate series of scoria cones and crater lakes located about 15km north-west of Colac in western Victoria. The area is of national significance and is included on the Register of the National Estate. The dwelling is located on top of the rim of the scoria cone and is oriented to take advantage of views across Lake Purdiguluc to the north and Lake Corangamite to the west.

15 The applicant, Murray Kidman, lives diagonally opposite the subject land on the south side of Lineens Road.

16 Being located on the rim of the crater, the dwelling is silhouetted against the skyline. It is highly visible from the applicant's property and Lineens Road. It is also prominent on the ridgeline and silhouetted against the skyline when viewed from various locations on surrounding roads and properties. The development is visible from the public viewing areas at Red Rock, but because these public viewing areas are higher than the development and look down upon it from a distance, the dwelling is not so prominent or intrusive as when seen from other closer locations. From this location, it is seen as one more modification in a modified landscape.

17 The applicant first became concerned about development of the dwelling in February 2004 when earthworks commenced. The responsible authority has file notes of conversations between Mr Kidman and Council officers on 17 and 18 February 2004. On 27 February 2004 Mr Kidman wrote to the responsible authority expressing his concerns that the dwelling under construction was detrimental to the surrounding views and landscape of the district and planning permit was in breach of the Colac-Otway Planning Scheme. He also complained that none of the local residents had been notified nor had the Department of Natural Resources and Environment and Corangamite Catchment Management Authority.

18 Mr Boyd gave evidence that he had approached various neighbours, including Mr Kidman, in November 2001 to advise them of his proposal to subdivide and construct a dwelling on the subject land. He admitted that he had no plans of the house at that time and spoke only in general terms.

19 Mr Boyd also gave evidence that he had discussions with the applicant in August 2003 when the applicant was concerned about installation of the electricity supply service pit to service Lot 3. At this time Mr Boyd said that he had indicated where he was going to build his house by pointing to the crest of the hill of what is now Lot 3 on PS520877D.

20 Mr Kidman did not give evidence personally. However, his solicitor, Mr Longmore, submitted that Mr Kidman denied that he was ever contacted in November 2001 by Mr Boyd. In any event, this was prior to the planning permit application being lodged and could not be said to constitute notice of the application.

21 It was submitted by Mr Longmore that the reasons why the applicant did not take action to seek cancellation of the amendment of the permit sooner related in part to the attitude of the responsible authority, which maintained that even though the boundary of the Significant Landscape Overlay was very close to the dwelling, the development was outside the overlay and hence the planning officer who processed the permit application had exercised his discretion correctly not to require advertising. Mr Kidman had work and family responsibilities which prevented him from pursuing the matter. He was also short of money and aware of the potentially onerous financial implications of taking action. There were articles in the local press about the matter and the applicant hoped that the responsible authority or permit applicant would voluntarily seek to resolve the matter. When Mr Kidman finally decided to seek legal advice and take action, this all took time. Mr Kidman finally decided to proceed because he considers that if the dwelling is allowed to remain in its present position, "it will become a permanent fixture on a site of national significance, degrading the amenity not just the applicant's neighbourhood but also the amenity of the broader area". It was submitted that he has made these applications as a matter of principle because he believes that the planning scheme has been breached by allowing the subdivision and the landscape objectives of the Significant Landscape Overlay have been ignored.

22 The subject land is in a Rural Zone under the Colac-Otway Planning Scheme. The Rural Zone has a minimum lot size of 40 hectares. Clause 35.01-4 provides that a permit may be granted to create smaller lots if the subdivision is a re-subdivision of existing lots or to create a lot for an existing dwelling. Only one additional lot which does not contain a dwelling may be created in a subdivision.

23 Although the permit application states that the three lot subdivision is a consolidation and re-subdivision of three existing lots, I find this is not the case. The land in Certificate of Title Volume 9085 Folio 861 comprises only a single parcel being part of Lot 2 on Plan of Subdivision 77507. The land size is less than the minimum subdivision size of 40 hectares. Therefore the only subdivision potential is for an excision of the existing dwelling, which would result in a maximum of two lots.

24 Part of the subject land, being the land inside the rim of the crater, is included in an Environmental Significance Overlay Schedule 2 (Lakes, Wetlands and Stream), a Significant Landscape Overlay Schedule 1 (Coastal, Otway and Plains Landscapes) and a Wildfire Management Overlay. For the purpose of considering these applications, all parties agreed that the application of the Wildfire Management Overlay was not relevant.

25 Both the Environmental Significance Overlay and the Significant Landscape Overlay require a permit to construct a building or construct or carry out works. The Environmental Significance Overlay also requires a permit to subdivide land.

26 In Schedule 1 to the Significant Landscape Overlay, the statement of the nature and key elements of the landscape are:

* The Otway Ranges foothill and coastal areas, the lake foreshore areas, the volcanic cones, basalt plains, lava flows and other sites of geological significance, and other natural features such as the stony rises form key components in establishing the landscape character within the Shire.

27 Amongst the landscape character objectives to be achieved is the following:

* To protect landscape features including volcanic cones and significant views within the Shire.

28 Included among the permit requirements of Schedule 1 to the Significant Landscape Overlay are the following:

* Buildings and works should be sited so that they become an integral part of the visual landscape rather than dominating it.

* Buildings and works on ridgelines, the slopes of scoria cones and inside craters should be avoided. It must be demonstrated that there is no alternative suitable site and that the buildings and works are essential.

29 The decision guidelines in Clause 4 of Schedule 1 include:

* The visibility of proposed buildings or works to the surrounding area or within significant views.

* Any comments of the Department of Natural Resources and Environment, the Corangamite Catchment Management Authority and the Western Coastal Board.

30 There is a local planning policy in the Colac-Otway Planning Scheme on Ridgelines in Clause 22.02. This policy applies to all land located on or adjacent to prominent ridgelines. The objective of this local planning policy is to ensure that all development, uses and subdivision are contained within the visual corridors between prominent ridgelines to preserve the visual amenity environment. It is policy that a building should be sited or designed so that:

* It does not form a prominent silhouette on the ridgeline.

31 Pursuant to Clause 22.02, landscaping should be provided so that:

* The development is effectively blended into the surrounding area.

* Predominantly native species of trees that will grow to a height above the roof level are provided.

* A mixture of low, medium and high growing trees and shrubs will be used.

* Landscaping is completed within 12 months of the use commencing.

32 The policy basis of the Ridgelines Policy is protection of the visual qualities of prominent landforms and ridges, which are important to maintaining the landscaping qualities of the Shire and which enhance the tourism attractiveness of the area. The significance of the volcanic craters, lakes and plains are recognised in the Municipal Strategic Statement as fundamental to the identity of the Shire and for tourism.

(given orally at the hearing and subsequently revised)

Section 87 Cancellation and Amendment Application

33 The applicant, Mr Murray Kidman, has come to the Tribunal seeking justice and some answers to his questions about why the processing of planning permit P02/030 by the responsible authority has ignored the provisions of the Planning and Environment Act 1987 and the Colac-Otway Planning Scheme by allowing a subdivision which is prohibited under the planning scheme and a dwelling in a location that is clearly contrary to the policy objectives and guidelines of the planning scheme.

34 He has made his primary application for review under section 87 of the Act. To be successful in an application to cancel or amend a permit, an applicant must surmount various hurdles set out in the Act. On behalf of the responsible authority and the respondents, it is contended that Mr Kidman has failed to surmount those hurdles, in particular because he has not made his request as soon as practicable after he had notice of the facts relied upon in support of his request.

35 However, I do not think the applicant would be satisfied with a system that took refuge behind technicalities and legal form, and failed to deal with the substance of his concerns fairly and according to the substantial merits of the case as in enjoined by section 97 of the Victorian Civil and Administrative Tribunal Act 1998. I therefore propose to address the planning merits of the development permitted by Planning Permit PO2/030 first. I will then address the specific matters required by the Planning and Environment Act which deal with amendment and cancellation of permits. In doing so, I rely on the public documents and the planning scheme, not on any speculation or opinions expressed about individuals or their motives during the course of the hearing.

36 Mr Nelson, who represented the responsible authority, has admitted that the handling of this planning permit by the responsible authority has not demonstrated a rigid application of procedures. I agree. This is evidenced by the following.

37 First, a permit has been issued for a subdivision which is not allowable under the Colac-Otway Planning Scheme. Unfortunately, there is nothing that can be done to cancel the permit for this subdivision because the plan of subdivision has been registered. Section 91(5) of the Planning and Environment Act provides:

(5) A permit which relates to a subdivision or consolidation cannot be cancelled if the plan of subdivision or consolidation has been registered under the Subdivision Act 1988.

38 A three lot subdivision of the subject site was not legally permissible under the provisions of the Rural Zone in the Colac-Otway Planning Scheme. The very most that could have been permitted was a two lot subdivision. Whilst nothing can be done about it now, the subdivision is certainly something that should not have occurred from either a legal or a planning perspective.

39 Second, a permit has been issued for a dwelling on the very rim of a crater which forms a prominent ridgeline, and that is in a location directly contrary to the Councils local planning policy on Ridgelines in Clause 22.02 of the planning scheme. This policy specifically states that a building should be sited or designed so that it does not form a prominent silhouette on the ridgeline. The dwelling on Lot 3 contravenes this policy because it does form a prominent silhouette on the skyline, which is particularly intrusive when viewed from roads and land in the immediate and middle distance, including the applicant's property. From a landscape perspective, it is a classic case of what not to do and where not to site a building.

40 I consider the Ridgelines Policy should have been taken into consideration irrespective of whether the house was to be located within the Significant Landscape Overlay or not. The policy is directly relevant because of the need for a planning permit under the Rural Zone for a second dwelling on the land. Indeed the Rural Zone itself requires consideration of the impact of development on the character and appearance of the area or features of scientific or natural scenic beauty or importance. This area meets all those criteria yet it is apparent from the inspection report, which is the only documentation of Council consideration of the permit application, that these matters were never considered.

41 The existence of the Significant Landscape Overlay and the Environmental Significance Overlay over part of the subject land is also evidence of the significance of the land. The responsible authority appears to have considered that the issue of whether the site of the dwelling falls within the overlay boundaries or outside them is determinative of whether the location is appropriate or not. I disagree. Whether or not the site of the house is inside the boundaries of the overlays does not resolve this substantive planning issue. Rather, the responsible authority should be exercising its judgement based on the circumstances of each case guided by the objectives, policies and decision guidelines in the planning scheme. The planning scheme will not provide all the answers but it will provide the framework within which judgements must be made and discretion exercised.

42 In the present case I consider that the responsible authority was wrong in the exercise of its discretion by failing to take into proper consideration all the matters it should. I consider the officer's inspection report is evidence of the inadequacy of this consideration.

43 With reference to the location of the house in relation to the overlay boundaries, I find on the evidence presented to me that no reasonable council officer could have formed the view that the house site lay outside the overlays at the time when the planning permit application was considered. The reason for this conclusion is that there were simply no measurements on the plan submitted with the planning permit application, or indeed the first set of endorsed plans, by which the exact location of the house could be ascertained. Even when the endorsed plans were amended in February 2004 just prior to commencement of construction, the measurements on the site plan mean that the house was quite clearly within the overlays. It was submitted by the respondents during the hearings that these measurements were inaccurate and in fact the house has not been sited in accordance with the endorsed plans. However, it is only now that the responsible authority has surveyed the site and located the house accurately in relation to the overlay boundaries as part of its determination of the boundaries pursuant to Clause 61.06 of the planning scheme that it has been possible to accurately identify the location of the house and its relationship to the overlay boundaries. It can be seen from the plan in Attachment "RA-1" that now that the correct dimensions have been ascertained, the house is still partially within the overlays.

44 In many respects the issue of the overlay boundary in relation to the house is irrelevant. The landscape issues that are relevant under the Significant Landscape Overlay are just as relevant whether the site of the house is within the overlay or not. A consideration of landscape issues is also required under the provisions of the Rural Zone and the Ridgelines Policy as previously noted. The Environmental Significance Overlay, which applies to part of the subject land, requires a permit to subdivide and hence this aspect of the Environmental Significance Overlay is relevant irrespective of the application for a dwelling.

45 In my view, the failure to address these matters are all further evidence of the unsatisfactory way in which this matter has been handled by the responsible authority. I find that on a consideration of both the legal and planning merits of the application a planning permit should not have been issued for either the three lot subdivision or a dwelling in the location in which it has been constructed, namely on the rim of the crater where it forms a prominent silhouette on the ridgeline.

46 Turning now to a consideration of the requirements of the Planning and Environment Act relating to the application to cancel or amend the planning permit, I find that Mr Kidman is a person who would have been entitled to object to the issue of the permit. He should have been given notice of the planning permit application in accordance with section 52 of the Act, and was not given that notice. I therefore find that pursuant to section 89(1)(a) of the Act he has standing to make this application for amendment of the permit.

47 My reasons for concluding that he should have been given notice are that he is a near neighbour whose amenity will be affected by the prominent views of this dwelling from his property. I also consider he is entitled to object as a member of the general public who lives in the area and is concerned about impacts of development on the landscape significance of an area that is of national importance, which is evidence by its inclusion in the Register of the National Estate. I find that notice should have been given to the applicant pursuant to section 52(1)(d) of the Act.

48 The next issue to consider is how I ought to exercise the Tribunal's discretion pursuant to section 87 of the Act. In the case of P Elson v Mount Alexander Shire Council (P50858/2001) 11 VPR 5, quoted by Mr Nelson, the Tribunal set out a seven step sequential series of assessments said to be necessary for the proper analysis of cancellation/amendment applications. The seven steps are:

* Was the request made as soon as practicable after the requester became aware of the facts?

* Does the Tribunal consider one of the required grounds of Section 87(1) has been made out?

* Does a merits review indicate that the issue of a permit in its existing form, or at all, is inappropriate?

* Could the requester be reasonably expected to have had notice of the permit?

* Is the Tribunal satisfied that the issue of the permit substantially disadvantages the requester?

49 I consider that these seven steps provide a useful method of assessment and I will now respond to each of the questions in the above order.

50 Was the request made as soon as practicable after the requester became aware of the fact?

No, the request was not made as soon as practicable after Mr Kidman became aware that a permit had been issued.

51 I do not consider it is relevant whether or not Mr Boyd told the applicant about his plans prior to the permit application being made in November 2001. At that stage he had no plans available and in any event, it would have been reasonable to assume that any application would be advertised. The first warning that Mr Kidman had that a dwelling was going to be constructed on the subject land was in August 2003. That was when the electricity supply was being installed. Even if he was not fully aware of what was proposed at that time, the applicant certainly became aware of the nature of the proposal when construction of the dwelling commenced in February 2004. Although Mr Kidman spent the next couple of months trying to find out what had happened, he took no action until May when he lodged an application for a declaration under section 149B of the Planning and Environment Act, and he did not make an application to cancel or amend the permit until June 2004 when the house was only days away from completion. Although the applicant's delay may be explained by his unfamiliarity with the law, by his uncertainty about what to do or a reluctance to take legal action, I find that Mr Kidman did not act as promptly as he could, or perhaps should, have once he became aware that a permit had been issued for the dwelling in a location that was inappropriate without notice to him.

52 Nevertheless, I note that under section 89(3) of the Act I have a discretion to refuse to consider a request to cancel or amend a permit in these circumstances. In other words, I am not bound to refuse to consider a request under this section. Specifically, the provisions of section 89(3) provide as follows:

(3) The Tribunal may refuse to consider a request under this section or section 87 unless it is satisfied that the request has been made as soon as practicable after the person making it had notice of the facts relied upon in support of the request."

53 I will therefore address the way in which I will exercise my discretion after responding to the other questions in the seven steps.

55 Does the Tribunal consider one of the required grounds of section 87(1) has been made out?

Yes, I find that the ground in section 87(1)(e), namely failure to give notice in accordance with section 52, has been established.

56 Does a merits review indicate that the issue of a permit in its existing form, or at all, is appropriate?

Yes. Legally the three lot subdivision should not have been permitted. The land formed only a single lot to begin and it was below the minimum subdivision size of 40 ha. There were not 3 lots therefore the consolidation and resubdivision provisions of the planning scheme were inapplicable. A permit for the dwelling in a location on a prominent ridgeline silhouetted against the sky is inappropriate from both a planning and policy perspective.

57 Could the requester be reasonably expected to have had notice of the permit?

No. The permit application was never advertised and there was no means by which he could have been aware at the time that a permit application had been made.

58 Is the Tribunal satisfied that the issue of the permit substantially disadvantages the requestor?

Yes. The applicant's visual amenity is adversely affected by views of the dwelling from his property. He is also disadvantaged as a member of the community affected by the adverse impact on a landscape of national significance

59 Is it just and fair to cancel or amend the permit?

I cannot cancel the permit in its entirety because the three lot plan of subdivision has already been registered and section 91(5) of the Act provides that a permit which relates to subdivision or consolidation cannot be cancelled if the plan of subdivision or consolidation has been registered under the Subdivision Act 1988. The question is therefore whether it is just or fair to amend the permit to require demolition of the house.

60 I do not consider it would be just and fair to do this. Construction of the house has progressed almost to completion. The prejudice and detriment that would be suffered by the respondent/permit holders by requiring demolition at this stage would be out of proportion to the level of detrimental impact on the landscape generally or to the visual amenity of the applicant. I note that a similar conclusion is implicit in the letter from the Department of Sustainability and Environment dated 2 July 2004.

61 I also consider that because the request to cancel or amend was not made as soon as practicable after the requestor became aware of the facts, this is a further reason why I should not exercise my discretion to amend the permit to require demolition of the house. If construction had not yet commenced or was only in its initial stages I might have reached a different conclusion. However, there is no evidence that the Boyds have acted improperly in relation to obtaining their planning permit and I do not consider that they should be prejudiced to the extent of being required to demolish the house because of the inadequacies of the responsible authority's handling of this matter.

62 However, notwithstanding that the request was not made as soon practicable after the requestor became aware of the facts, I consider it would be just and fair to amend the permit to impose a condition requiring preparation and implementation of a landscaping plan to ameliorate the impact of the dwelling on the ridgeline. The landscaping plan should be prepared by a qualified landscape architect who is experienced in rural landscapes. The plan should not try to screen the house or driveway as this would be virtually impossible. Rather, the objective should be to provide a backdrop to the house so that in the longer term the silhouette on the ridgeline is broken by trees and other vegetation. The landscaping should take account of landscape patterns in the area and be sensitive to the significance of the cones and craters which create the landscape character of the area. It should also take account of the future of the extractive industry operations on the land and the long term landform that will result from these operations. For these reasons the landscaping should not be confined just to Lot 3. The landscaping policy set out in clause 22.02-3 of the Ridgelines Policy should also be used as a guide in the preparation of the landscaping plan.

63 In determining to exercise my discretion to make an order to amend the permit in this respect I note the submission of the respondents that they would agree to a landscaping condition being placed on the permit.

64 Although the stop order made on 16 June 2004 is self executing, I will explicitly order that the stop order on the development works pursuant to the permit is cancelled to place the issue beyond doubt.

65 Consequential orders should be made requiring new plans to be endorsed as part of the planning permit to reflect the construction of the dwelling and its proper location.

66 The declaration that Mr Kidman originally sought under section 149B of the Act was to the following effect:

In the case of a Significant Landscape Overlay, the topographic feature sought to be protected is as defined by the schedule attached to the overlay and not exclusively by the cartographic drawing which appears on the maps attached to the Colac-Otway Shire Planning Scheme or any subjective interpretation of that drawing.

67 The wide reaching ramifications of such a declaration led to an amendment of the application in P1265/2004 to restrict the scope of the declaration sought to how the Significant Landscape Overlay should be applied to the subject site only. However, at the hearing Mr Longmore did not address any argument to the subject of the declaration.

68 On behalf of the responsible authority, Mr Nelson submitted that it would make a nonsense of VPP new format schemes if the definition of the land subject to the range of planning controls was other than by reference to the maps contained within the schemes. To have to refer to the words of a schedule in an overlay in order to determine whether land was the subject of the overlay provisions would introduce unacceptable uncertainty and confusion in the administration of the planning controls. Such an approach is entirely unnecessary as the zoning and overlay maps, in conjunction with Clause 61.06 and the exercise of the power vested in the responsible authority by Clause 61.06 to determine the boundary of any zone or overlay map, removes any ambiguity or uncertainty as to whether land is or is not within an overlay or zone boundary.

69 I agree. Clause 4 of the planning scheme states:

"The planning scheme map shows how land is zoned and whether it is affected by an overlay.... To find out the effect these requirements have on your land, it is necessary to refer to the written document."

70 The opening words of every zone and overlay are:

71 Similarly, the opening words of clause 41, which deals with operation of overlays, are:

If an overlay is shown on the planning scheme map the provisions of the overlay apply in addition to the provisions of the zone and any other provisions of this scheme.

72 In each of these provisions, reference is made to the planning scheme map. There is a clear intention that it is the planning scheme maps which will determine whether a zone or overlay applies to a particular parcel of land. Clause 61.06 deals with the determination of boundaries if a boundary is not precisely shown on a planning scheme map or is not otherwise defined. In my view, zone and overlay boundaries can only be shown on a planning scheme map. There are other boundaries that may be referred to in a scheme which may be defined rather than shown on a planning scheme map. However, there is no suggestion in either clause 61.06 or elsewhere in the scheme that such a boundary could be the boundary of a zone or overlay.

73 I therefore find that there are no grounds for the applicant to suggest that the boundary of an overlay may be defined by reference to a topographic feature rather than by reference to the planning scheme map. There was no evidence or argument put to me on behalf of the applicant to suggest that the boundary of the overlay fixed by the responsible authority pursuant to clause 61.06 was not accurate. I therefore declare that the Significant Landscape Overlay No 1 applies to the subject land as shown in the plan attached to this order "RA-1", which was determined by Ronald Joseph Mildren, General Manager, Environmental Planning at the Colac-Otway Shire Council on 23 June 2004.

74 The Tribunal gave an oral determination at the conclusion of the hearing on 8 July 2004. Subsequent to the hearing, it received correspondence from the applicant's solicitor seeking that the Tribunal make further orders regarding a section 173 agreement to be placed on the lots created by the subdivision. No leave was given to the applicant to make further submissions and I have therefore not considered any of the further correspondence received by the Tribunal following the hearing.