The order of the Tribunal is that the decision of the Responsible Authority is set aside.

A permit is granted for the subdivision of land at 1120 Gellibrand River Road, Chapple Vale generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the plan of subdivision can be certified, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified

a. to show the northern boundary of lot I altered as shown on WMO Kit map 1 dated 30 May 2005 produced by Midway;

b. to show the land in Certificate of Title Volume 9500 Folio 644 which is to the south of the Gellibrand River Road as land in the plan of subdivision linked by a vinculum to be part of Lot 2 unless prior to the certification of the plan of subdivision such land is a separate lot in a title issued by the Land Titles Office; and

c. to show the parcels of land in the larger lot each side of the house driveway linked by vinculum showing they are part of the same lot.

2 This permit will expire after two (2) years if the relevant plan of subdivision is not certified by the Responsible Authority, unless an extension of time is approved by the Responsible Authority. The written request for extension of time must be received before 3 months have elapsed after the date of expiry.

3 The plan submitted for certification must meet the requirements of the subdivision Act 1988, as amended.

4 The Statement of Compliance will not be issued prior to all conditions in relation to subdivision on the subject Planning Permit being complied with to the satisfaction of the Responsible Authority

5 The subdivision as shown on the endorsed plan must not be altered save, with the written consent of the Responsible Authority.

6 The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.

7 All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.

8 The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the Relevant Authority in accordance with Section 8 of that Act.

9 Access onto and within the property must be constructed to the satisfaction of the Responsible Authority

10 The driveway for Lot 2 should enter the roadway perpendicular to the roads centre line and be in a safe location for users, pedestrians, cyclists and motorists by consideration of both vertical and horizontal sight distances to the satisfaction of the Responsible Authority.

11 The driveway for Lot 2 must be constructed to an all weather surface to the satisfaction of the Responsible Authority.

12 Individual access must be provided onto each lot created and the subject access must be constructed to the satisfaction of the Responsible Authority.

13 Prior to a statement of compliance being issued, the owner/applicant shall enter into an agreement with the Responsible Authority under Section 173 the Planning and Environment Act 1987 stating that:

• No further subdivision of either lot hereby approved.

• No dwelling shall be permitted on lot 2

Evidence of lodging of this agreement in accordance within Section 181 of Planning and Environment Act 1987 shall be submitted to the Responsible Authority. All costs associated with the agreement will be met by the owner/applicant.

14 An above ground static water supply must be made available according to the specifications provided in the WMO Kit lodged as part of the application.

15 The existing house access being a driveway from Gellibrand River Road that is 290m in length, must have a width of approximately eight (8) metres (allowing vehicles to pass) and free of overhanging limbs within 4metres vertically. A loop in front of the dwelling allowing vehicles to turn around must also be provided. The access must be maintained or alternative access provided to the satisfaction of the Responsible Authority.

16 Vegetation must be maintained within 30 metres of the dwelling (or the property boundary) to the requirements listed in the WMO Kit lodged as part of the application.

17 That the applicant prepare, submit to South West Water Authority for approval and implement an Environmental Management Plan for the development which addresses the following:

a) The design and maintenance of the treatment system for treatment and disposal of wastewater from the dwellings (septic tank or other treatment system):

• To comply with the EPA Publication No 891 Septic Tanks Code of Practice.

• Containing all effluent within the lot boundaries throughout the year.

• Maintenance of effluent disposal system (to ensure it is kept in effective working condition).

b) The development and use of the property to prevent:

• Any drift or discharge of chemicals or other foreign matter from the property to any adjoining watercourse or lands.

• Erosion of soil and transportation of soil from the property to adjoining watercourses or lands.

c) Vegetation Management - to ensure preservation of the natural vegetation within 30 metres of any water course.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

1 This is an application to review the decision of the Responsible Authority to refuse permission for the subdivision of land at 1120 Gellibrand River Road, Chapple Vale. The Responsible Authority issued a Notice of Refusal to Grant a Permit for the following reasons:

1. The proposed subdivision does not meet the purpose of the rural Zone, specifically the subdivision would not further the sustainable use of land.

2. The proposed subdivision does not meet the objective of State Planning Policy Framework - Clause 17.05.

3. The proposed subdivision does not meet the objectives of Local Planning Policy Framework - Clause 21.04-3 Settlement Patterns and Rural Living; and Clause 22.04 House Lot Excisions in the Rural and Environmental Rural Zone.

2 The proposal involves a two lot subdivision of land currently being developed for use as timber production (eucalypt plantation). The subdivision is required to excise an existing dwelling located on the land to enable it to be sold.

3 The existing land holding currently has an area of 126.58 ha in two titles. Lot 13A which is located on the south side of the Gellibrand River has an area of 32.77 ha and it is this lot which is proposed to be subdivided. Proposed lot 1 will have an area of 3.4 ha and the existing dwelling will be contained within the boundaries of this lot. Proposed lot 2 will have a balance area of 29.37 ha.

4 Proposed lot 1 is irregular in shape due to the location of the river reserve to the north and the track to the south which provides the lot with access and frontage to Gellibrand River Road. A carriageway easement across the access track is proposed to provide access to proposed lot 2.

5 The review site is located in the Carlisle River/Chapple Vale district of south west Victoria. As I have indicated above, the total land holding has an area of 126.58 ha in two titles. Lot 13A has an area of 32.77 ha and it is this lot which is proposed to be subdivided. The balance of the land holding (98.31 ha) is being developed for timber production.

6 The dwelling located on lot 13A is currently rented out and I was advised it is in very good condition. Proposed lot 1 which will accommodate the dwelling consists of approximately 2.9 ha of cleared pasture or lawn/garden located around the dwelling and 1.03 ha of native vegetation (described to me as medium forest) within about 100 m of the dwelling.

7 Proposed Lot 2 comprises a small area of sheds, hydrological buffer dams and native vegetation, and 12 ha of eucalypt plantation.

8 The topography of the district is very undulating with river valleys and heavily wooded bush, including some State Forest. The valleys are generally cleared farming land surrounded by treed higher peaks. The nearest settlement serving the district is at Carlisle River (approximately 11 klms distant) which comprises a small primary school, sporting oval and hall. I was advised that the settlement of Simpson is more distant but more conveniently accessible to the site. A general store and hotel is also located at Gellibrand.

9 The district comprises well established dairy farms which have been cleared out of the bush over many years. I was advised that the history of settlement of the district is characterised by smaller dairy farms of 70 to 80 ha, each usually comprising a dwelling, which have been progressively amalgamated with other farms to form a more economically viable farming unit. In these circumstances, many of the existing dwellings were not required by the purchasers for farming purposes but were retained for residential purposes, and in some instances lots have been excised out of the larger land holding to provide separate titles for the dwellings. As a consequence, a number of dwellings are dispersed throughout the area in what is otherwise a very rural context.

10 The review site itself comprises largely cleared land which was previously operated as a dairy farm, but has recently been acquired by the permit applicant who is developing the site for timber production.

11 The site is zoned Rural under the Colac Otway Planning Scheme. The purpose of the zone is:

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 the sustainable use of land for Extensive animal husbandry (including dairying and grazing) and Crop raising (including Horticulture and Timber production).

•

An integrated approach to land management.

•

Protection and creation of an effective rural infrastructure and land resource.

•

Improvement of existing agricultural techniques.

•

Protection and enhancement of the bio-diversity of the area.

•

Value adding to agricultural products at source.

•

Promotion of economic development compatible with rural activities.

•

Development of new sustainable rural enterprises.

To ensure that subdivision promotes effective land management practices and infrastructure provision.

12 A permit is required to subdivide land. The minimum lot size is 40 ha however under Clause 35.01-4 a permit may be granted to create smaller lots if the subdivision is to create a lot for an existing dwelling. Only one additional lot which does not contain a dwelling may be created in the subdivision. Each lot must be at least 0.4 hectare.

13 Decision guidelines under Clause 35.01-6 require consideration of a range of matters categorised unde the headings of General Issues, Rural Issues, Environmental Issues and Design and Siting Issues.

14 I note that Timber Production is a section 1 permit not required use in the zone.

15 The site is affected by an Environmental Significance Overlay (ESO3 - Proclaimed Water Catchments). A permit is required to subdivide land. A Land Subject to Inundation Overlay also applies. A permit is required to subdivide land and an application must be referred to the relevant flood plain management authority. A permit is required to subdivide land under the Wild Fire Management Overlay. An application must be referred to the relevant fire authority.

16 Clause 17.05 of the State Planning Policy Framework (SPPF) is relevant to the consideration of this application. This Clause provides broad policy support for the protection of productive agricultural land and for the encouragement of sustainable agricultural land use and practices. It is policy that subdivision of productive agricultural land should not detract from the long-term productive capacity of the land. Under the heading General Implementation at clause 17.05-2 it is stated that the following must be considered by a Responsible Authority (and on review this Tribunal) in considering a proposal to subdivide or develop agricultural land:

•

The desirability and impacts of removing the land from primary production, given its agricultural quality and productivity.

•

The impacts of the proposed subdivision or development on the continuation of primary production on adjacent land, with particular regard to land values and to the viability of infrastructure for such production.

•

The compatibility between the proposed or likely development and the existing uses of the surrounding land.

•

Assessment of the land capability.

17 Clause 16.03 (Rural Living and Rural Residential Development) refers to the Minister's Direction No.6 Rural Residential Development and is primarily concerned with identifying land suitable for rural residential purposes. In broad terms this form of residential development is encouraged close to existing towns but where land will not be required for fully serviced urban development, and where electricity, water and road access is available.

18 Clauses 15.01 (Protection of catchments, waterways and ground water), Clause 15.02 (Flood Plain Management), and Clause 15.07 (Protection from Wildfire), are also relevant.

19 The Local Planning Policy Framework (LPPF) seeks to respond to and apply the SPPF to local circumstances. The Municipal Strategic Statement (MSS) provides an overview of the municipality and identifies key strategic directions for planning and development in the Shire. At Clause 21.04-03 (Settlement Patterns and Rural Living) encouragement is given to enhancing the roles of Colac and Apollo Bay as key settlements and limiting opportunities for rural living to areas "...where these do not detract from the key environmental qualities of the region.." Implementation of the strategy involves encouraging future residential development into existing serviced and urban zoned areas and "...strictly limit rural residential development only to land close to existing settlements and which can be developed in accordance with Ministerial Direction No 6."

20 At Clause 21.04-5 encouragement is given to the promotion of development which is environmentally responsible whilst facilitating the development of new value-adding processes and encouraging diversification. Relevant strategies intended to achieve this objective include supporting the use of agricultural land in units which are sustainable and economically productive and discouraging the subdivision of rural land where this is unrelated to maintenance of sustainable agriculture.

21 The development of economically viable and sustainable forest industries is also promoted by this Clause.

22 Clause 22.04-03 is a local policy for House Lot Excisions in the Rural and Environmental Rural Zones. Under the heading Policy Basis it is stated that the policy has been introduced to ensure "..that the creation of small lots and excision of dwellings is consistent with the zone objectives and with Council's strategic objectives identified in Clause 21.04-2 and 21.04-3 of the MSS". It is also stated the MSS recognises that house lot excisions can be detrimental to the continued maintenance and efficient operation of farming land and sustainable agriculture. The objectives of the policy are:

•

To ensure that the excision of dwellings and the creation of lots smaller than that specified in the Schedules to the Rural and Environmental Rural Zones are consistent with the purposes of those zones.

•

To limit the subdivision of land that will be incompatible with the utilisation of the land for sustainable resource use.

•

To ensure that the subdivision of land which excises a dwelling is designed in a manner which does not prejudice surrounding rural production activities.

23 The policy requires that lots created under the provisions of Clauses 35.01-4 or 35.02-4 should have a minimum area of 2 ha and dwellings must be in a habitable condition and comply with the Building Code of Australia. The policy also seeks to ensure that the excision of dwelling lots will take place in a manner that will ensure the dwelling does not have the potential to restrict agricultural production on adjacent land and to ensure that adequate distance is maintained within the existing lot around the dwelling to reasonably limit likely impacts (if any) of adjacent agricultural activity. The policy discourages subdivision that "...is likely to lead to such a concentration of lots as to change the general use and character of the rural area.... unless it can be shown that the clustering of lots will not limit the productive use and development of the larger lots in the subdivision or surrounding land". Subdivision is also discouraged within water supply catchments, groundwater recharge areas or in close proximity to lakes and watercourses in order to protect water quality and quantity.

24 Decision guidelines requires consideration of the following matters;

•

The impact of the development to adjoining land uses and the measures taken to integrate with the surrounding land uses.

•

The impact on the road system and the adequacy of vehicular access, egress and provision of on-site parking.

•

The impact of wildfire on the development and the adequacy of measure taken to minimise the adverse impact of wildfire.

•

The necessity of entering into a Section 173 agreement with the applicant to ensure that specified works are undertaken to the satisfaction of the responsible authority.

•

Any other matter considered relevant having regard to the issues and objectives contained in the Corangamite Regional Catchment Strategy 1997.

25 The parties at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

26 Mr Nelson submitted that the grant of a permit which would effectively create a residential lot in the rural zone is contrary to planning policy and proper planning principles. While Mr Nelson acknowledged that the planning scheme provides a discretion to grant a permit for the proposed subdivision, it was his submission that there is a clear policy thread found in both the SPPF and LPPF, and in the zone provisions, which discourage small lot subdivisions in the Rural Zone.

27 Mr Nelson referred me to a number of decisions of the Tribunal[1] in which issues concerning house lot excisions in rural zones have been considered. In Mr Nelson's submission these issues are conveniently summarised by Member Cimino in McGrath v Mornington Peninsula SC (2003) VCAT 1816 ( 3 December, 2003) as follows:

The problem .......... is that it adds to the potential for the area to be occupied by persons seeking what I would describe as superior quality residential amenity, an expectation which can often be in conflict with the noise, odours, buildings etc that are often associated with genuine farming practices that are consistent with the purpose of the zone. This conflict adds unnecessarily to the pressure for farming ventures to be abandoned in favour of residential use.

Excisions that create rural residential type lots not only contribute to a shift away from the rural land use, they also heighten expectations and pressure for this to occur on other land. As noted by Senior Member Byard, this expectation works towards inflating land values so that farming becomes unviable. These are the very problems that are anticipated in the policy at clause 17.05-2.

In my view, the potential amenity conflicts likely to arise between rural and residential land uses together with heightened expectations for subdivision will add to the pressure for land to be further subdivided, fragmented and given over to rural residential use. This outcome is clearly not in accordance with the purpose of the zone nor is it supported by the clear strategic intent of the planning scheme's policies.......

28 It was also Mr Nelsons's submission that the granting of a permit would establish an undesirable precedent for the granting of permits for future house lot excisions in circumstances where timber plantations are established on former farms which contain a dwelling but which are no longer required for the plantation. I was advised that the Council considers this issue of precedence to be of particular relevance given the encouragement for the establishment of timber plantations provided by the planning scheme policies and by generous taxation concessions which provide incentives for timber production. It is the Council's experience that timber production companies are increasingly identifying land within the municipality and that land is being acquired for timber production purposes at an increasing rate. Mr Nelson submitted the Council is concerned that the experience of the adjoining municipality (Corangamite) in which 35 plantation conversions involving almost 3,000 ha has occurred over the last eighteen months, will be repeated within Colac Otway, and that small lot subdivisions to excise an existing dwelling will invariably follow with these plantation conversions.

29 In response to these circumstances it is the Council's position that, having regard to the scale of plantation development and consequent excision applications, "a line needs to be drawn" and the creation of a multitude of small lots in rural areas occupied by dwellings which have no relationship to the farm activity, ought to be strongly discouraged in accordance with the provisions of the planning scheme.

30 It was Mr Howard's submission that the proposal is concerned with the sustainable use of rural land and the preservation of existing assets in the highest and best manner. Mr Howard submitted that the proposed subdivision does not create a defacto rural residential subdivision and nor does the grant of a permit promote or create a precedent for such a subdivision.

31 Mr Howard advised me that the existing dwelling on the land is surplus to the applicant's requirements and it is not required as part of the management and operation of the timber plantation. I was further advised that the sustainability and viability of the timber industry is at least in part dependant on factors including land affordability and, in purchasing a property, the applicant takes into account the value of a dwelling on the land and the opportunity to offset that value against the purchase price of the land. It is the applicant's concern that Councils opposed to the development of timber plantations in their municipalities are routinely refusing house lot excisions as a tool to restrict this use. Mr Howard submitted that this opposition to timber plantations provides a relevant background to the Council's consideration of this application.

32 Notwithstanding the above, Mr Howard advised me that this Council has approved many house lot excision applications in the recent past, including excisions relating to timber plantations as well as dairy farms, and that this practice conflicts with the submissions made by the Council in this case that this proposal is not supported by the policy framework and zone provisions of the planning scheme.

33 Mr Howard further submitted that the grant of a permit for the subdivision is justified having regard to the characteristics of the site and the site context. It was his submission that the land currently occupied by the dwelling is unlikely to be used for agricultural production of any type given the constraints created by the land's proximity to the river environs and the existence of native vegetation. Similarly, the land is not suitable for incorporation into the timber plantation being established on the balance lot because of the existence of native vegetation and requirements for setbacks from the river and creation of buffer zones under the WMO.

34 As a consequence of the above, it was Mr Howard's submission that the grant of a permit would not compromise the use of the balance lot for agricultural activity (timber plantation) and it would not result in the loss of productive agricultural land. It was further submitted that the subdivision would enable the land to continue to be used for residential purposes which is to be preferred to the loss of the existing dwelling, which is the likely consequence of a refusal. The social benefit of retaining the dwelling was also emphasised.

35 I have outlined in some detail above the planning scheme provisions and in particular the policy framework against which this application must be considered, and I am satisfied that this proposal achieves an acceptable outcome having regard to that framework.

36 Clause 35.01-4 of the Rural zone provides the discretion to grant a permit for the subdivision of land into lots smaller than specified in the schedule to the zone provided that the subdivision is to create a lot for an existing dwelling. In assessing an application for such a subdivision consideration must be given to the State and Local Planning Policy Frameworks and relevant decision guidelines and, as I have detailed above, the policy framework is primarily focussed upon protecting rural land so that it can continue to be used for rural purposes. Threats to the achievement of this objective include the environmental degradation of land, fragmentation of land holdings into lots too small to sustain rural activities, intrusion of incompatible land uses (including residential uses) into rural areas, and the creation of unplanned rural/residential subdivisions.

37 In response to these threats the local policy at Clause 22.04 provides direction as to how to exercise the discretion available to grant a permit. I think it is significant that while the local policy recognises that house lot excisions can be detrimental to the continued maintenance and efficient operation of farming land and sustainable agriculture, it does not discourage house lot excisions, but rather seeks to ensure that "....that the creation of small lots and excision of dwellings is consistent with the zone objectives and with Council's strategic objectives......." Elements of the policy are quite specific (eg minimum lot area of 2ha) while other elements are expressed in terms which emphasise the achievement of outcomes (eg the excision of dwellings will take place in a manner that will ensure the dwelling does not have the potential to restrict agricultural production on adjacent land).

38 The policy clearly applies to the consideration of applications for house lot excisions in the Rural Zone, irrespective of the nature of the agricultural use. The policy does not distinguish between house lot excisions for timber plantations and, for example dairy farms. In the absence of a different policy specifically aimed at timber plantations, an application for the excision of a house lot from a timber plantation must be assessed against the existing policy. It is not open to the Council to seek to apply different tests for timber plantations than it does to, say, dairy farms.

39 In this context I think the Council's reliance on the submission that the grant of a permit would establish an undesirable precedent, has not been substantiated. I accept that the rate of conversion from dairy farms and other rural uses to timber plantations is increasing in this municipality and it was common ground between the parties that applications for house lot excisions invariably follow the establishment of a timber plantation. In my view however, the local policy provides sufficient protection against the undesirable consequences of this trend feared by the Council, provided of course that the Council is prepared to apply the policy correctly and consistently. Each application must be considered against the outcomes sought to be achieved by the policy having regard to the context of the site and the individual circumstances and merits of the application. In the event that the grant of a permit would, for example, contribute to a "concentration of lots as to change the general use and character of the rural area", then the permit ought not be granted. A similar outcome ought to occur in respect of an application which would result in a dwelling having the potential to restrict agricultural production on adjacent land and where inadequate distance is maintained to reasonably limit likely impacts of adjacent agricultural activity.

40 These circumstances do not apply in the current application and I am satisfied that the proposal demonstrates a high degree of consistency with the policy objectives. In arriving at this conclusion I have been influenced by the following considerations:

a

The proposed lot at 3.7 ha exceeds the nominated minimum lot size of 2ha. The dwelling is in a habitable condition.

b

The configuration of the lot is such that a significant setback (in excess of 100 m) has been provided between the dwelling and the edge of the timber plantation and this successfully limits any impacts from the adjacent property.

c

As a consequence of the generally passive nature of the activities associated with a timber plantation (other than at harvesting which occurs every 15 to 20 years), a dwelling and a timber plantation are likely to be more compatible neighbouring uses than a dwelling and other rural uses where amenity impacts may arise from regular spraying, irrigation, machinery and stock movements. The significance of this is that where the amenity of a dwelling is affected by the activities of the adjoining rural use, it is the viability of the rural use which is often prejudiced by the existence of the dwelling. In my view this is not a situation likely to arise in the context of this site.

d

Notwithstanding my observations above, the creation of a clustering of small, residential lots in this locality would be undesirable and clearly in conflict with the intent of the policy framework. This subdivision will not contribute to such a clustering of lots or dwellings. A dwelling is not required for the timber plantation on the balance lot and a permit would be required for the use and for the construction of a dwelling on the balance lot in any event. While the consolidation of the balance lot with the lot to the north of the Gellibrand River would enable the land to be used for the purpose of an additional dwelling on an as of right basis, this is a circumstance which is unlikely to arise within the life cycle of the timber plantation (20 to 25 years). In any event, because a consolidated lot would exceed the minimum lot size for an as of right dwelling, I am entitled to conclude that this would be an acceptable outcome. The Council has proposed an agreement as a permit condition limiting future subdivision of the lots created by the subdivision, and this was not opposed by the applicant.

e

The subdivision will not result in the loss of productive agricultural land. I accept Mr Howard's submission that the land contained within the proposed lot is unlikely to be capable of being used for agricultural purposes because of its proximity to the river and the existence of native vegetation on the land.

41 Having regard to the above, I have concluded that the subdivision of this land as proposed will not prejudice the achievement of the zone purposes, and will not prejudice surrounding rural production activities.

42 My conclusion that the proposal is satisfactory does not in my view conflict with the findings of the previous Tribunal decisions referred to me by Mr Nelson, in which applications for house lot excisions have been refused. In each case the imperative of protecting rural land for agricultural use which is established by the zone purposes and the policy framework, has been the principal consideration. In those earlier cases the Tribunal found that the subdivision before them would prejudice the continuing use of land for agricultural purposes and the grant of a permit could not therefore be justified. It is important that I emphasise that my findings in this case have not been founded on a view that house lot excisions do not have the potential to compromise the continued maintenance and efficient operation of farming land and sustainable agriculture. My findings have however been based on the view that this subdivision will not compromise the viability of agricultural activity on this or adjacent sites.

43 I am satisfied that the subdivision does not raise any substantive issues with respect to the ESO and the WMO. Mr Nelson did submit that the subdivision would lead to a change in the level of activity of the existing dwelling which would raise issues of relevance under the ESO, especially having regard to the proximity of the dwelling to the river. Mr Nelson did not however pursue this submission with any vigour, and I do not agree that the subdivision will conflict with the objective of the overlay.

44 The application was referred to the relevant fire authority which did not object to the application subject to the imposition of permit conditions. The imposition of these conditions satisfy the requirements of the WMO.

45 It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit issued.

46 In deciding the conditions to be included on the permit I have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions of the parties in addition to the matters which arise from my reasons.

[1] Parkworth Pty Ltd & Anor v Casey CC (2002) VCAT 1594 (18 December, 2002). O'Neill v Yarra Ranges SC (2003) VCAT 1368 (29 September, 2003). Blackwood v Casey CC (2003) VCAT 769 (27 June, 2003). McGrath v Mornington Peninsula SC (2003) VCAT 1816 ) 3 December, 2003).