1. Within 90 days of the date of this order the respondent must circulate to the Tribunal, the responsible authority and to the applicants an amended permit application responding to the matters raised in the reasons associated with this order. The amended permit application can be accompanied by new supporting submissions.
2. Within 21 days of the date upon which the amended permit application was circulated in accordance with direction 1 above, the responsible authority and the applicants may make further written submissions in respect of the amended permit application. Copies of any such written submissions must be provided to the Tribunal and the respondent.
3. Within 14 days of the receipt of any of the further written submissions referred to in direction 2 above, the respondent may make a written submission in response. Copies of any such response must be provided to the Tribunal, the responsible authority and the applicants.
4. Any party may request a further hearing in respect of the amended permit application within the timeframes specified above. The request should be accompanied by reasons supporting the need for such a hearing, and copies of such request must be provided to the other parties to the Application for Review. The Tribunal will otherwise decide the application in accordance with the submission made at the hearing and the further submissions referred to in these directions.

An permit application to amend permit P07/314[1] for the redevelopment and use of land for a motel by the amendment of endorsed plans.

Application under section 82 of the Planning and Environment Act 1987 to review a decision to grant a permit.

The land is an irregular lot located on the south side of Fifteenth Street approximately 350m from the intersection with Deakin Avenue in Mildura.

1. This is an application to review the decision of the responsible authority to amend permit P07/314[2] which allows the redevelopment and use of land for a motel, at 836A & 836B Fifteenth Street, Mildura.
2. The permit application sought to amend the permit by an amendment to endorsed plans to show:
   1. Relocation and alteration of the reception building;
   2. The proposed storeroom;
   3. Alterations to the pool enclosure;
   4. Deletion of the playground and pool BBQ area, and;
   5. Four car ports.
3. The application is made on the grounds which were pursued at the hearing by Mr Costa under the following headings:
   • The decision made by Council is invalid as the decision was made after the permit had expired and prior to Council granting an extension of time to the permit.
   • The Council's Officer's report is not accurate to make an accurate determination on the application.
   • Inaccurate plans that cannot enable an appropriate decision to be made.
   • Conditions placed upon the permit do not reflect what exists upon the site or plans.
   • The changes to the development will cause an adverse effect to the amenity of the surrounding area.
4. 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. The Tribunal inspected the subject land and its locality.

1. The land is an irregular lot located on the south side of Fifteenth Street approximately 350m from the intersection with Deakin Avenue in Mildura. The site is surrounded with a mix of residential and business zones and uses varying from shops, restaurants, bulky goods stores and service type retail outlets and various forms of tourist accommodation.

1. The applicants' property with their dwelling and associated tourist cottages adjoins the land to the north west at 2 Elizabeth Avenue.

1. This application is another step in a long running dispute between the applicants and the respondents in respect to various amenity consequences arising from the redevelopment of an existing building for the purpose of a motel.
2. Mr Costa raised a threshold issue, that is the validity of the council's decision. The permit application is an application to amend an existing permit. I am advised that the subject permit in fact expired the day before the council decided the permit application and issued its notice of decision. The council has since extended the life of the permit.
3. These circumstances clearly call into question the validity of the council's decision. However, I have elected to exercise my power under clause 62 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard this failure to comply with the planning enactment. My reason for this decision is that if I dismiss the current application, the likely outcome is that council will simply remake its decision, and this issue will be back before the Tribunal, resulting in avoidable inconvenience both to the Tribunal and the parties.
4. In respect of the merits of the application, a primary submission of Mr Costa is that the application is piecemeal and incomplete and should not be allowed in its current form. The permit application submitted to council purported to only relate to the matters set out in paragraph 2 above. However, the amending plans which accompany the permit application included a significant number of other alterations to the layout of the building which are apparently not included within the scope of the permit application. These changes include:
   • The creation of an outdoor area in association with the indoor pool;
   • A new function room and associated kitchen;
   • A new stairway and various other changes to openings in the north west elevation;
   • New or relocated laundry, toilets and gymnasium;
   • Changes to the layout of motel units themselves, and;
   • The replacement of a dwelling, within the building, with new motel units.
5. The redevelopment is essentially complete, and the various plan amendments shown on the amending plans submitted with the permit application, both those that fall within the scope of the application and those that do not, reflects the as on constructed condition[3].
6. I agree that the permit application is incomplete and piecemeal, and that the permit in its current form should not be issued. However, this is clearly a matter which should be resolved and I propose to give the respondent permit applicant an opportunity to amend the application so it encompasses all the changes which have taken place and which require approval. It is important that plans to be endorsed accurately reflect all of the changes that have been made, if the amending plans are not completed in this respect they should be further amended. If the respondent permit applicants elect not to amend the permit application, I will set aside the decision of council and direct that no permit be issued.
7. The applicants raised a number of other issues in respect of the impact of the development on their amenity i.e.:
   • Noise issues arising from the outdoor area associated with the pool, the operation of the laundry, and the hotwater systems, and;
   • Privacy impacts.
8. The respondent permit applicants have commissioned a desk top acoustic assessment, and constructed various acoustic fences in response to this assessment. It is the applicant's submission that these measures are insufficient.
9. I consider the amendment of the permit application is an opportunity to seek to resolve these issues once and for all. To assist in this resolution I make the following observations, arising from these submissions and my inspection in the presence of the parties advocates.
   • I accept that noise of children playing in the pool area can be disturbing, but this area is one in which tourist accommodation is commonplace and noise of this type is to be accepted. It may be that the situation can be improved by some modification of the existing acoustic fence arrangements. However, my primary conclusion is that the condition proposed by council controlling the hours during which the pool can be used is an adequate protection of amenity in these circumstances;
   • Noise from the laundry exhaust vent is very intrusive, and if the noise made by the hot water services that I observed on my inspection, is representative of the noise which might occur during the night time period, then the noise level is unacceptable and the acoustic fence is not effective. These noise issues go to the core of the dispute between the parties, and it would be desirable if they were properly resolved as part of the amending permit process;
   • The privacy screening measures employed are more than sufficient, they verge on compromising the amenity of the motel units effected, in my view no further privacy measures are required.
10. I will make orders setting out a process for the submission and consideration of an amended permit application.

[1] The permit issued on 18 January 2008 has been amended once before on 2 July 2008

[2] The permit issued on 18 January 2008 has been amended once before o 2 July 2008

[3] Although perversely the amending plans show trees on the north western boundary which the current permit requires to be retained, when these trees were in fact removed during construction.