1. The decision of the responsible authority is varied.
2. Planning Permit No. P07/0557.01 is amended and an amended permit is directed to be issued for the land at 2617 Point Nepean Road, Rye. The amended permit is set out in Appendix A. [For the avoidance of doubt, the amended permit in Appendix A reflects the version of the amended permit forwarded to the Tribunal and other parties by the responsible authority's solicitors by email on 13 May 2010, with an additional change to Condition 1 requiring amended plans to show the painting, rendering or treatment of the west wing wall and the elevated southern side wall on the front wing in muted or natural tones to the satisfaction of the Council.]

1. The Tribunal is satisfied that the contraventions alleged in Breaches 3 to 7 (inclusive) in Part 6 of the amended application for enforcement order dated 1 December 2008 are made out. However, based on the orders made in proceeding P2736/2009, the Tribunal makes no formal enforcement order in relation to these contraventions, and this component of the application for enforcement order is dismissed. [Breaches 1 and 2 have been dealt with in prior enforcement orders of the Tribunal].
2. The respondents Tuscann Enterprises Pty Ltd, Elvia Russo & Joe Russo (jointly and severally) are ordered to pay the further costs of the responsible authority to date in the proceedings, on an indemnity basis, fixed in the sum of $10,539. These costs must be paid in full by 30 June 2010 to the responsible authority's solicitors.
3. The application by Mr Fraser for costs against the respondents is refused.

Ms Juliet Forsyth of counsel, instructed by Ms Kate Henderson of Norton Rose lawyers.

For Tuscann Enterprises Pty Ltd (ACN 101 782 012), Elvia Russo & Joe Russo

Mr Jason Kane of counsel, instructed by Jim McCarthy, lawyers. Mr Kane called as a witness:

• Mr Damian Iles, town planner, Hansen Partnership

1. Mr & Mrs Russo occupy land at 2617 Point Nepean Road, Rye, owned by a related entity Tuscann Enterprises Pty Ltd. In September 2007, Mr & Mrs Russo obtained a planning permit (Permit P07/0577) to develop the land with a two-storey dwelling and associated works, in accordance with endorsed plans.
2. The land has been developed other than in accordance with that permit and endorsed plans. In earlier proceedings, enforcement orders have been made against Mr & Mrs Russo and Tuscann dealing with a number of contraventions, with those orders having now been complied with.
3. This decision and reasons concerns the remaining items of contravention, and focuses on three issues:
   • the north or front wing of the building (closest to Point Nepean Road) has been built 350mm higher than shown on the endorsed plans, and the south or rear wing has been built 280mm higher than shown on those plans;
   • the façade construction for the first floor balcony has been reversed from that shown on the endorsed plan, and now presents as an infill wall on the west side rather than the east; and
   • the roof and vent are constructed with reflective materials.
4. These items have potential impacts for Mr Fraser and his wife, who own and occupy nearby land at 8-12 Michael Street, and Mr & Mrs Andrews who own and occupy land at 14 Michael Street. The additional height and bulk of the Russo's dwelling partly mask their shared views of Port Phillip Bay.
5. In June 2009, the Russo's applied to amend the permit to regularise these deficiencies, and to have the dwelling effectively approved 'as built'. Three objections were received, including one from Mr Fraser.
6. In September 2009, the Council issued a Notice of Decision in favour of amending the permit. Mr Fraser seeks to review that decision. He is supported in that review process by Mr & Mrs Andrews, although they are not formally parties to it. The application for review is the subject matter of proceeding P2736/2009. The outcome of this proceeding (i.e. whether the permit will be amended) will essentially determine whether any further enforcement order is warranted. That forms the remaining undecided part of proceeding P1347/2008. Although both proceedings were listed for hearing together, the main focus of the most recent hearing was therefore on the merits of an amended permit.
7. We agree with the Council that the outcome of the merits case turns on two main issues:
   • will the amendment to the permit result in an outcome that unreasonably affects the views from Mr Fraser's dwelling or Mr & Mrs Andrew's dwelling, or result in a significant loss of amenity?
   • will the amendment to the permit result in an outcome that unreasonably impacts on the neighbourhood in terms of height and bulk?

1. Before turning to the key merits issues, Mr Fraser raised some preliminary or legal matters that warrant a short response.
2. First, the Council had approved and issued the permit in September 2007, based on an officer report dealing with the height and design of the building, and reflecting a position then advanced by the developer. Mr Fraser contends that the Council, and consequently the Tribunal, cannot now lawfully depart from this common position then adopted between developer and Council nor the considered discretion then exercised. Although Mr Fraser offered no authority for this proposition, and was unwilling to expand upon it, he refused to abandon this ground. We[1] consider the ground fails for the following reasons:
   • the Planning and Environment Act 1987 and the regulatory framework for planning clearly countenance that a planning permit is not forever 'set in stone' and may be amended. The s 72 process followed by the Russo's is lawful, and the Council (and on review, the Tribunal) must properly consider the application to amend the permit on its merits, having regard to all relevant planning considerations. That permit amendment process includes appropriate third party rights of objection and review, which have been utilised here by Mr Fraser.
   • Mr Fraser's contention is akin to an argument in estoppel. The prior issue of the permit was simply an administrative decision of the Council in response to the application then before it, and no estoppel by action, issue or representation arises from it in this proceeding in the manner contended. Indeed, estoppel may not apply in the planning review jurisdiction of the Tribunal at all[2].
   • having regard to s 98 of the Victorian Civil and Administrative Tribunal Act 1998, we do not consider it appropriate for Mr Fraser (a barrister by profession) to effectively 'lob a grenade' into the proceeding by raising an unsupported and unsubstantiated legal issue. We have preferred to deal with the substantial merits of the case before us rather than a potential technicality of dubious worth.
3. Secondly, Mr Fraser contends that, in the absence of a clear change of circumstances, the Council and consequently the Tribunal ought not now depart from the Council's prior decision and considered exercise of discretion. He argues that to do so would bring the planning process into disrepute. Although Mr Fraser did not refer us to any authority, a consistent principle (sometimes called the Van Egmond principle) has been applied by the Tribunal on this issue. In determining whether a permit should be amended to authorise a development undertaken unlawfully, the Tribunal should consider the amendment application on its merits, but must proceed on the assumption that the unlawful development has not been carried out. To do otherwise would reward the non-complying developer. Nonetheless, the existence of the unlawful building can be used to better understand and assess the impact it would have if permitted[3].
4. Just as the initial Council decision involved a considered exercise of discretion, so too does this Tribunal decision on the proposed permit amendment. To the extent it is implicit in Mr Fraser's argument that we should give weight to the prior Council decision (when the permit was first issued) in considering the merits issues now before us, we have done so, albeit without coming to the same conclusion as Mr Fraser. It should however be noted that this is not, strictly speaking, a 'repeat appeal' where great weight should necessarily be given to the earlier decision on an identical application[4]. The prior Council decision to grant the permit was not the subject of any review proceeding, and this is an application to amend that permit.
5. The third 'preliminary' matter raised by Mr Fraser concerns a restrictive covenant applying to land on the west side of Michael Street, including the land owned and occupied by Mr Fraser and his wife, and Mr & Mrs Andrews. This covenant requires the successive setback of dwellings erected on each lot along Michael Street having the benefit and burden of the covenant, so that all lots share the available views of Port Phillip Bay. Mr Fraser conceded that the Russo's land on Point Nepean Road has neither the benefit nor burden of this covenant, although he submitted that the covenant provides a good demonstration of a view sharing arrangement, and explains the basis for the siting of the dwellings on each of the Fraser and Andrews lots. In the absence of the Russo's being bound by the covenant, we can give it little weight in this proceeding. We have instead applied the relevant view sharing provisions in the Mornington Peninsula Planning Scheme.
6. We turn therefore to the key merits issues.

1. Mr Fraser's concerns with this proposal relate to the impact upon his and his neighbours views of Port Phillip Bay; and the appropriateness of the building bulk in this local area.
2. In regard to local area character, cl 21.07-2 of the MSS in the Mornington Peninsula Planning Scheme has an objective to ensure the design of new residential development is site and area responsive having regard to (amongst other things) neighbourhood character. The strategies to achieve this include ensuring development within existing townships demonstrate regard has been given to a range of matters including:
   • The retention of native vegetation of local provenance and other existing vegetation;
   • The established residential fabric;
   • Maintaining the balance between open space, vegetation and building density; and
   • Building profiles that compliment the natural topography of the site.
3. These strategies are intended to be implemented by a range of measures including:
   1. Utilising Design and Development Overlays that contain siting, design and height provisions to encourage site responsive design; and
   2. Utilising specific Environmental Significance and Vegetation Protection Overlays to ensure appropriate site responsive design.
4. In this case, the site is affected by DDO2, ESO25 and VPO1. Planning permission is required for the construction of the dwelling pursuant to DDO2 and ESO25, the most pertinent of which is the requirements of DDO2. Whilst ESO25 and VPO1 may be of less relevance to why planning permission is required, it is clear the combined effect of the three overlays is to ensure the design of a dwelling on this site is both site and area responsive.
5. Mr Fraser pointed out the starting point in DDO2 is a general requirement that no building exceed a wall height of 5.5 metres or a building height of 6 metres unless it can be demonstrated compliance is unreasonable or unnecessary and no significant loss of amenity will result. Having regard to the amendments sought to the permit, the building height in particular is greater than 6 metres and hence the tests of unreasonable or unnecessary, and no significant loss of amenity, are matters that we need to consider.

1. The principles formulated by the tribunal (and its predecessors) over a number of years to assist in the consideration of the impact of development upon the views enjoyed by existing residents are:

1. There is no legal right to a view; 2. Views form part of the existing amenity of a dwelling and their loss is a relevant consideration to be taken into account;

1. The availability of views must be considered in the light of what constitutes a reasonable sharing of those views;

1. Added emphasis will be placed on considerations b and c above if the question of views is specifically addressed under the planning scheme; 2. The level to which the objectors have developed their own properties; and 3. The importance of the view to be lost within the overall panorama available[5].
2. Mr Fraser and his neighbours at 14 Michael Street currently enjoy an elevated view across residential properties to Port Phillip Bay and the horizon. The Council described this view as magnificent and the applicant described this view as terrific and expansive. We agree with these descriptions.
3. The Russo's called expert evidence through Mr Damian Iles. Mr Iles described the existing view as complex, panoramic and impressive as it contains buildings, coastal vegetation, aquamarine shallower water, deeper water and the horizon. He agreed with Mr Fraser that the Russo dwelling does result in a loss of amenity to the properties of Mr Fraser and his neighbours. This is because the dwelling interrupts the view of part of the sea, particularly part of the aquamarine colour of the shallower water, and it reduces the overall depth of the sea view to that between the top of the front of the dwelling and the horizon line. The question for us is whether this loss is significant and unreasonable.
4. Mr Fraser emphasised the design objective in DDO2 "to protect shared view lines where reasonable and practical" and focussed upon the word "protect". However, this objective in combination with the principles established previously by the tribunal place emphasis upon protecting views "where reasonable and practical", particularly as there is no legal right to a view. Hence, we agree with the Council and the Russo's that a loss of a view per se is reasonable so long as it is not significant.
5. We also agree with Counsel for the Russo's that:
   • a reasonable sharing of views does not mean an 'equal' sharing of views will result[6];
   • a reasonable sharing of views does not mean retaining forever all or most of a view one enjoys if there is land within the view line that has potential for development[7]; and
   • the primary test is whether there is a reasonable sharing of views, rather than adopting a starting point that there should be no loss of view or no loss of views to particular features or landmarks[8].
6. As indicated earlier, we acknowledge the properties on the west side of Michael Street benefit from a covenant that requires houses on each of the lots to be progressively set back further as one moves north (closer to the bay). This maintains a view line for those properties behind, and it has contributed to the creation of the panorama of views that are currently available from Mr Fraser and his neighbour's properties.
7. In assessing the impact of the loss of view, it is necessary to consider a quantitative assessment of the extent of loss and also a qualitative assessment of the features within that view to be lost in the context of the existing overall panorama of view available.
8. Mr Iles has calculated the angle of view from the deck of 14 Michael Street to be in the order of 90 degrees or more, and he observed that this is less than the angle of view available from Mr Fraser's deck. In regard to 14 Michael Street, Mr Iles estimates the proposal will result in a loss of less than 10% of the view, including part of the aquamarine shallower waters closer to the shoreline of Port Phillip Bay. Obviously the loss from Mr Fraser's deck is less because his view is greater to begin with. Having regard to the quantity of the view available as a result of this proposal, we are satisfied that the loss of view is reasonable.
9. In regard to the loss of view of some of the aquamarine water near the shoreline, Mr Iles pointed out that, even with a reduced building height (i.e. as presently permitted), the dwelling would remove part of these aquamarine waters from the view. This view is essentially part of a sea view and it must be remembered that the aquamarine waters will not always be perceivable (such as on a cloudy or choppy day). Having regard to the quality of the view to be lost within the overall panorama, we note that part of the aquamarine waters will be lost, but another part of these waters will continue to be available to the west of the dwelling. We agree with Mr Iles that reducing the height of the building will still result in a loss of some of these aquamarine waters to the extent that the area to the west of the dwelling will continue to be the principle area within which the view of the aquamarine waters will remain. Given some aquamarine waters remain visible and the fact that such colouring is not there every day, we find the loss of this view to be reasonable.
10. Mr Fraser submitted the inclusion of glass balustrading in the west wing wall (a balcony) would create an openness and transparency that ensures protection of the aquamarine waters. We are not persuaded opening up the west wing wall will have a significant impact on the view from Mr Fraser and his neighbour's properties. The angle of view of the Russo's house from Mr Fraser and his neighbour's properties currently includes the highlight window in that wall. If this were opened up further, we find any additional view of the aquamarine waters will be limited due to the remaining surrounding dwelling structure. As such, the area to the west of the house will continue to be the principle area within which the view of the aquamarine waters will remain. Therefore, we find the loss of this view to be reasonable.
11. In regard to Mr Fraser's concern about the narrowness of the view of the sea between the top of the dwelling and the horizon, we note that the expanse of the sea view available throughout the panorama varies due to existing vegetation, electricity poles and the proposed dwelling. We agree with Mr Iles the perception of any reduction in height of the dwelling from Mr Fraser and his neighbours properties will not significantly change due to the reasonable distance between the houses. The height of the dwelling maintains a view of the sea and the horizon immediately above, which will continue to contribute to the overall panorama of sea view enjoyed by the residents of Michael Street. Hence, we find it is not necessary or reasonable to require the lowering of the height of the dwelling as no significant loss of amenity will result from the loss of view.

1. The design objectives of DDO2 include:
   • To ensure that the design of subdivision and housing is responsive to the environment, landform, site conditions and character of coastal and bayside residential areas and rural villages.
   • To recognise areas where substantial vegetation cover is a dominant visual and environmental feature of the local area by ensuring site areas are large enough to accommodate development by retaining natural or established vegetation cover and to provide substantial areas for new landscaping and open space.
   • To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting.
   • To ensure that buildings are designed and sited to avoid being visually obtrusive, particularly in terms of creating a silhouette above a skyline or existing tree canopy line when viewed from surrounding streets and properties.
2. Mr Fraser described the development of property and houses in this area as characteristically "beach" type houses in environmentally sensitive colours and natural muted materials nestled amongst the native trees. In contrast, Mr Iles' evidence placed more emphasis upon what he described as an emerging character of double storey grand designs. However, in response to Mr Fraser's cross-examination, Mr Iles acknowledged there was no evidence of such houses in the immediate surrounds of this site. Mr Iles did, however, point to examples further afield that are picked up in the panorama views obtained from Mr Fraser and his neighbours properties.
3. Clause 21.07-2 of the MSS points out in some areas of the Mornington Peninsula a key factor will be balancing open space, built form and vegetation. It also states in part:

...One key distinction is between areas where the street space is defined and enclosed by buildings in contrast to areas where open space, landform and landscape are dominant and provide a setting for buildings.

1. We agree with Mr Fraser that the local area character here, and particularly along Michael Street, is dominated by elements of landform and landscape such that the dwellings are largely nestled into the landscape and topography. In contrast, this dwelling sits high on the site (and hence in the area) within limited screening vegetation on its west side. It is a large, modern design that is predominantly white in appearance with feature timber elements. The proposal before us is to increase the height of the building and it does project above the existing tree canopy line, particularly when viewed from Mr Fraser and his neighbour's properties. In our view, this outcome is not consistent with that sought in the design objectives of DDO2. In this case, the height of the front of the building, in particular, combined with the filling in of the west wing wall and the strong white colour of the finish creates a stark building that is visually obtrusive particularly when viewed from surrounding properties.
2. We note one of DDO2's objectives is to avoid buildings causing a silhouette above a tree canopy when viewed from surrounding streets. Michael Street has a strong landscaped character and much of the building is already screened from view in Michael Street[9]. This view will change when the trees required to be planted on either side of the driveway are planted and grow. We acknowledge the building does protrude above the tree canopy of Pt Nepean Road, but we note the building would still be visible at the approved height as well due to (as Mr Iles explained) the topography of the land, the service road near this site, and the existing clearing for the bus stop on Pt Nepean Road. In our opinion, the dwelling's visibility in this context is not sufficient reason to refuse these amendments.
3. Returning to the visibility from Mr Fraser and his neighbour's properties, one of the Decision Guidelines to DDO2 is whether opportunities exist to avoid a building being visually obtrusive. We are of the view a combination of measures could be used to achieve such an outcome, including the planting of new canopy vegetation on the west side of the building and/or painting or using materials of muted or natural tones.
4. Mr Iles pointed out the approved landscape plan requires the planting of a currajong tree on either side of the driveway that will reach a mature height of 9 metres; and the Council's draft permit conditions seek a further eight moonah and coast banksia trees on the west side of the site, including partly adjacent to the west wing wall, that could reach mature heights of between 8 and 20 metres[10]. We are satisfied that the additional landscaping required in the Council's draft permit conditions will assist to place the dwelling partly within a landscape. However, the landscaping does not extend along the entire length of the west boundary; and the landscaping is a long-term solution, as vegetation does not grow overnight or necessarily that quickly in a coastal location. Hence, we are of the view further amelioration works are required to achieve the design objectives of DDO2.
5. Mr Iles suggested the existing white colour will weather with time, but we are not persuaded by this. Mr Iles also suggested that the west wall could be painted to "tone it down". There was some discussion during the hearing as to whether further feature timber elements should be incorporated onto the west elevation, but we are not persuaded this would be a good outcome as it may undermine the architectural integrity of the design of the dwelling or turn it into a tree house, as was suggested by Mr Iles. Ms Forsyth suggested a requirement to change the materials or finishes of the west elevation should be a matter "to the satisfaction of the responsible authority" so that there can be further discussion between the Council and the applicant as to the appropriateness and suitability of the change in the materials/finishes. We agree with this, but wish to make it clear to the parties that our expectation is that the north or front wing of the dwelling, including the west wing wall and the elevated southern side (that sits above the lower rear half of the dwelling), at a minimum will be painted or rendered in an alternate colour that is of muted or natural tones or another suitable treatment as determined by the Council.
6. We agree with Mr Fraser that the roof and vent have been constructed with reflective materials that may create adverse amenity impacts in certain light or weather conditions. Mr Fraser indicated a preference for the roof of the dwelling to be Colorbond 'wilderness' in colour. This has been agreed to by the Russo's.
7. Mr Fraser questioned whether the inside returns of the parapet around the top of the roof should also be painted. We agree that the internal elevations of the roof, particularly the north and east sides that will be visible from Mr Fraser's property, should be painted in a similar colour to match that of the exterior west and south walls.

Conclusions on application for review, and consequences for enforcement action

1. It follows from the above that we consider it appropriate to amend the permit. The attached conditions in Appendix A give effect to the matters discussed above.
2. It also follows that the grant of the amended permit makes it unnecessary for the Council to further pursue the remaining parts of the amended enforcement order application (i.e. the contraventions alleged in Breaches 3 to 7 inclusive). That part of the enforcement order application is therefore dismissed.

1. Our decision to amend the permit and dismiss the remaining part of the enforcement proceeding in no way validates or excuses the conduct of the Russo's and Tuscann in their blatant non-compliance with the Mornington Planning Scheme over the course of the construction of the dwelling on their land. Both the Council and Mr Fraser sought costs against the Russo's and Tuscann, and Mr Fraser and the respondents were given the opportunity to make further submissions in writing on this issue after the hearing.
2. The Council sought its costs of the remaining part of the enforcement proceeding (i.e. excluding the costs of the application for review brought by Mr Fraser) on an indemnity basis. We agree that the Council's costs should be awarded on this basis, for similar reasons to those set out in the Tribunal's orders following earlier hearings in these proceedings where costs were similarly awarded. But for the Council's vigilance, it is our view that the Russo's and Tuscann would never have undertaken remedial works or sought a permit to regularise their contraventions of the planning scheme. We agree with the quantum of costs sought by the Council as being reasonable in the context of this proceeding, and have so ordered.
3. Mr Fraser also sought his costs of the enforcement proceedings, they having been until now reserved. Again, this claim properly excluded costs arising from the application for review. Mr Fraser is however in a different position to the Council. He chose to participate in the enforcement proceeding as an 'affected person' given an opportunity to be heard, but he was not obligated to participate and he was never joined as a party in the proceeding. He is not automatically a party under s 59 of the Victorian Civil and Administrative Tribunal Act 1998, and Mr Fraser himself acknowledges his status in the enforcement proceeding as an affected person.
4. Just as Mr Fraser's non-joinder as a party 'protects' him from an order for costs against him, it also effectively prevents him from obtaining a costs award in his favour. Section 109(2) of the Victorian Civil and Administrative Tribunal Act 1998 empowers the Tribunal to order a party to pay the costs of another party. Neither that Act nor the relevant enabling Act (i.e. the Planning and Environment Act 1987) confers a general power to award costs for or against a non-party, and the Tribunal has no inherent jurisdiction to do so[11]. It follows that, although we consider Mr Fraser's participation in the enforcement proceeding to have been reasonable, his claim for costs must fail. It is therefore unnecessary to consider the quantum of costs claimed.

THE DEVELOPMENT OF A DWELLING, OUTBUILDING, FENCE, VEGETATION REMOVAL AND ASSOCIATED WORKS IN ACCORDANCE WITH THE ENDORSED PLANS

1. By 12 July 2010, 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 will 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 plans endorsed by the Responsible Authority on 28 September 2007except that they must be amended to show:

1. endorsed plans 1 of 7 (Site Plan) and 2 of 7 (Set Out Plan) - the swimming pool and deck, the revised location of the wastewater treatment and disposal system, the removal of the vegetation between the front building line and the frontage boundary and the roof colour in "Wilderness"; 2. endorsed plans 3 of 7 (Ground Floor Plan), 4 of 7 (First Floor Plan), 5 of 7 (North and West Elevation), 6 of 7 (South and East Elevation) - revised to show FFLs and RLs as shown on the survey drawings prepared by Bosco Jonson Pty Ltd entitled "Building Levels" -Sheets 1 and 2 (726000AA.DWG -Feb 2010);

1. endorsed plans 4 of 7 (First Floor Plan) and 5 of 7 (North and West Elevation) - the west end of the upper northern deck filled in with a solid wall and highlight window;

1. endorsed plans 5 of 7 (North and West Elevations) and 6 of 7 (South and East Elevations) - the north or front wing of the dwelling, including the west wing wall and the elevated southern side (that sits above the lower rear half of the dwelling) at a minimum painted or rendered in an alternate colour that is of muted or natural tones or another suitable treatment to the satisfaction of the Council; and the inside returns surrounding the roof, particularly the north and east sides, painted in a similar colour to match that of the exterior west and south walls; 2. endorsed plans 4 of 7 (First Floor Plan) and 6 of 7 (South and East Elevation) - deletion of the screens on the east end of the upper northern deck and on the deck halfway along the eastern elevation at the first floor level; 3. endorsed plan 7 of 7 (landscaping plan) - the swimming pool and deck, the revised location of the wastewater treatment and disposal system, the vegetation that has been removed, the vegetation to be retained and additional vegetation to be planted in the western setback in the northern half of the Land. The additional vegetation should comprise 4 Moonah and 4 Coast Banksia or an equivalent number and type of indigenous species.

2. Further Amended Plan - Septic Tank System 'Alternative Location' : Prior to construction of the septic tank system in the location shown on the plans Preferred Effluent Location (Set B- Sheet 2 of 4 dated 2 October 2009) and Preferred Effluent Location (Set B - Sheet 3 of 4 dated 2 October 2009) ('the Alternative Location'), amended plans must be submitted to the satisfaction of the Council. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies provided. The plans must be generally in accordance with the plans referred to above, and with Landscaping Plan (Set B dated 6 May 2008), but modified to show:

1. details of any site cuts and subsequent retaining walls and/or batters required to allow the pressure dosed absorption bed to be installed along the contour of the land to a maximum depth of 600 mm at the rear of the property, including elevations of the proposed retaining wall and trenches and finished ground levels;

2. details regarding how any effluent will be prevented from emerging

3. reduction in the height of the brush fence to be not greater than 1.8

4. removal of any part of the swimming pool deck which sits 800mm or greater above natural ground level within 7.5m from the Point Nepean Road frontage of the land.

1. The septic tank system and amended plans must comply with the EPA Code of Practice - Onsite Wastewater Management (EPA Publication 891.2, December 2008) as amended from time to time.

2. Prior to construction of the septic tank system in the Alternative Location, a management plan must be submitted to the satisfaction of the responsible authority. The management plan must detail how the system will be managed on-site and into the future and should include information about the indexing valve, mechanical treatment plant servicing and effluent sampling frequency. Once installed, the septic tank system must be maintained to the satisfaction of the responsible authority in accordance with the management plan.

3. The septic tank system (including the pressure dosed absorption beds) must be installed in the Alternative Location in accordance with the endorsed plans within three (3) months of obtaining a Septic Tank Permit to install the system. The septic tank system and its installation must also be to the satisfaction of the responsible authority and in accordance with the reports entitled On-Site Management of Domestic Wastewater at 2617 Point Nepean Road, Rye dated 17 September 2009 prepared by Robert van de Graaff, Geotechnical Investigation and LCA for On-Site Wastewater Management dated 27 August 2009 prepared by Frank Tostovrsnik and Statement of Evidence in VCAT proceedings P1347/2008 and P2026/2008 dated 5 October 2009 prepared by Glen D Marriott.

1. The layout of the land, the size and type of the proposed buildings and works, including the materials of construction, on the endorsed plans must not be altered or modified without the consent of the Responsible Authority.

2. The materials and colour of the exterior finish of the building (including treatment of the roof in "wilderness") must be in accordance with the endorsed plans by 12 August 2010.

1. The extent of clearing of vegetation as shown on the endorsed plans must not be altered or modified without the further consent of the Responsible Authority.

2. All landscaping required by the endorsed plan must be completed by 12 August 2010 to the satisfaction of the Responsible Authority.

3. All planting shown on the endorsed landscape plan must be maintained in a healthy condition to the satisfaction of the Responsible Authority. Any dead or diseased trees or shrubs must be replaced as soon as possible.

4. All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the Responsible Authority.

1. All wastewater from the dwelling must be treated and retained within the boundaries of the property via an EPA approved sewage treatment plant treating effluent to a minimum 20ppm BOD/30ppm Suspended Solids standard discharging to a sub-surface irrigation system or other effluent disposal system installed in accordance with the EPA Septic Tanks Code of Practice March 2003.

1. Air-conditioning or other plant and equipment must be baffled to prevent nuisance or annoyance to persons in dwellings nearby or adjoining land.

2. No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the dwelling except with the prior written consent of the Responsible Authority.

(a) In condition 1d, the second sentence is deleted.

(b) After condition 1, new conditions 2 to 5 (inclusive are included as follows:

(c) Former conditions 2 to 14 (inclusive) in the permit are re-numbered as Conditions 6 to 18 (inclusive) accordingly.

Note: Permit amended in accordance with the Victorian Civil and Administrative Tribunal Order dated 21 October 2009 (Reference P2026/2008).

[1] to the extent the grounds raised by Mr Fraser comprise questions of law, they have been decided by DP Dwyer alone.

[2] generally following the principles, albeit in a slightly different context, in City of Northcote v J E Alam (1993) 13 AATR 28 per Byard SM, and in the decision on appeal to the Supreme Court in Joseph El Alam v City of Northcote (1994) 13 AATR 355 per Mandie J.

[3] see Jurkic v Manningham CC (Red Dot) [2005] VCAT 1152 at [10]- [11] per then Justice Morris P, applying Van Egmond v City of Knox (1985) 3 PABR 249. See also Knox CC v Tulcany Pty Ltd [2004] VSC 375 at [13(b)] per Osborn J. On this issue, Mr Kane also referred the Tribunal to MLP Corporation Pty Ltd v Boroondara CC [2007] VCAT 2371 per Dwyer DP.

[4] following Amoco Australia Limited v City of Berwick (1983) 1 PABR 166 per then Morris SM.

[5] see, for example, Holmes v Mornington Peninsula CC [2008] VCAT 507 at [16] per Hewet M.

[6] see, for example, Centrum Architects v Surf Coast CC [2002] VCAT 155 at [34] per Marsden SM

[7] see, for example, Inkran Pty Ltd v Mornington Peninsula SC [2010] VCAT 30 at [36] per Sharkey SM

[8] see, for example, Danby v Mornington Peninsula SC [2004] VCAT 2517 at [18] per Baird SM

[9] For example, figure 3 in Mr Iles' supplementary evidence report dated 5 March 2010.

[10] It was acknowledged during the hearing that due to the coastal conditions it was unlikely that the coast banksia, in particular, would reach such a mature height.

[11] see, for example, State of Victoria v Bradto Pty Ltd [2006] VCAT 685 per Judge Bowman VP