b) provide advice to all other parties of any such request or application, and

c) confirm to the Tribunal that advice as in (b) above has been provided.

For the Responsible Authority: Mrs. S. Thompson, Consultant Planner

For the Respondents/Objectors: Mr. D. Chisholm and Mrs. L. Chisholm

1. A proposal for five dwellings at 11 Scanlon Street, Berwick was the subject of an Application for Review by the Permit Applicants against the refusal of the Responsible Authority to grant a permit.

2. Following a hearing on Wednesday 3 May 2000, I made an Order dated 22 May 2000 directing that a permit be granted subject to conditions.

f) The separation between Unit 2 and Unit 3 increased by 0.6 metres at ground floor level and upper floor level.

h) A separation of 1.5 metres between Unit 1 and the garage for Dwelling 2, with the setback at the upper level wall of Unit 2 from the outer wall of the garage to Unit 2 maintained.

5. Mr. Keen, in a letter dated 4 September 2000 to the Tribunal, said:

"It is recognised that compliance with these conditions has resulted in a minor reduction to the building setbacks of Dwelling two from Peel Street."

6. The Tribunal advised Keen Planning Services, by letter dated 19 September 2000, as follows:

As you are aware determinations of the Tribunal are final and binding. It is not appropriate for the Tribunal to make any further comment in relation to the application.

However, if you believe there has been an accidental slip, error or omission, Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 provides for the re-opening of the matter.

If you wish the matter to be re-opened under this provision, you should make an application in writing demonstrating where you believe the error has occurred. Your attention is drawn to a reported decision which can be found in 4VPR 230.

A copy of your application under Section 119 should be circulated to all parties in accordance With Practice Note Planning List 1.

Should you have any queries please contact the Case Administration Section of the Planning List."

8. Mr. Keen further advised the Tribunal by letter dated 4 October 2000 as follows:

"We refer to the above review heard by Member Gerard Sharkey on the 3 May 2000, our letter of 4 September 2000 and your response of 19 September 2000. We refer also to our recent discussions with your Jane Birrell and understand that the matter has been referred back to Member Sharkey.

In response to the issues raised in your letter of the 19 September 2000 and to further clarify our position, we submit the following points.

* The amended plans comply with the conditions of the permit outlined in the decision of the Tribunal.

* The City of Casey have acknowledged that the amended plans comply with decision of the Tribunal however they are not prepared to endorse the plans as compliance with the conditions of the permit has resulted in a reduced setback of Unit 2 from Peel Street. As outlined in our earlier letter, a minimum of 3.0 metres setback from the site frontage from the walls of this Unit is maintained and the reduced setback is a maximum of 500 millimetres at any point. The minimum 3.0 metre setback to Unit 2 is the same as the minimum setback proposed to all other units in the development.

We seek a declaration from the Tribunal that the amended plans comply with the conditions specified in the Tribunal decision. Alternatively, we seek a directions hearing to have this matter resolved or your advice as to what other course of action is available."

9. The Responsible Authority advised the Tribunal by letter dated 30 October 2000 as follows:

"I refer to recent correspondence from Keen Planning Services Pty Ltd to the Tribunal in relation to a recent decision on the above matter and wish to seek direction from the Tribunal.

On 22 May 2000 at the direction of the Tribunal, Council issued Planning Permit P 683/99. Condition 1 of the permit required several amendments to the submitted plan. The applicant has now prepared and submitted plans to Council for approval in accordance with the requirements of Condition 1. However, the applicant's response to these conditions has resulted in a number of variations to other aspects of the plans.

While Council is satisfied that it has the discretion to approve most of these other changes under Section 73 of the Planning and Environment Act 1987, one of the changes proposed on the submitted plans results in the frontage setback of one of the dwellings being reduced. The applicant contends that the change is only minor, being 0.5 metres and is the same as the setback for the adjoining two dwellings. As you are aware, under Section 73 of the Planning and Environment Act, Council must be satisfied that the amendment "will not cause an increase in detriment to any person". Council is not satisfied in this regard, as the change may have some impact on the streetscape.

I understand that you wrote to Keen Planning Services in September and advised that they could pursue the matter under Section 119 of the Victorian Civil and Administrative Tribunal Act 1998. I also note that under Section 119(2)(a) the correction can be made "on the Tribunal's own initiative". Accordingly, I would like to request that the Tribunal give further consideration to this matter under this Section.

The matter of concern relates to Condition 1(h) of the permit that requires "A separation of 1.5 metres between Unit 1 and the garage for Dwelling 2, with the setback of the upper level wall of Unit 2 from the outer wall of the garage to Unit 2 maintained."

The applicant contends that as a consequence of complying with this condition the frontage setback of Unit 2 must be reduced. Council's view is that this constitutes a change from the original plan considered by the Tribunal and it is not clear that this was the Tribunal's intended design solution.

I would greatly appreciate if you could consider the above and advise me whether the Tribunal is prepared to deal with it under Section 1 19(2)(a) and effectively clarify this matter.

I understand that if the Tribunal declines to do so the applicant can pursue the matter under Section 119(2)(b), or alternately they have appeal rights under Section 149 of the Planning and Environment Act 1987 against Council's decision not to approve the amended plans."

10. The matter was to be set down for a Directions Hearing at 9.00am on Thursday 16 November 2000. A file note indicates that that date was unsuitable to Mr. Keen. All parties were subsequently advised, by letter dated 6 November 2000, that the matter had been set down for Directions at 9.00am on Monday 13 November 2000, to hear from the parties and consider the matter of possible change under Section 119 of the Victorian Civil and Administrative Tribunal Act 1998.

11. The appearances were as noted above. Mr. Keen later that morning advised the Registry that he had not received the hearing notice as it had been sent to his former firm, Collie Planning & Development Pty Ltd. Although there had been previous correspondence from the Tribunal to Mr. Keen at Keen Planning Services Pty Ltd, it would appear that the Tribunal records had not been amended to reflect the change of firm, ie. from Collie Planning & Development Pty Ltd to Keen Planning Services Pty Ltd.

12. There would seem to be three courses of action open to the Permit Holder. These would be seeking a review under Section 149 of the Planning and Environment Act 1987, requesting that the Tribunal make a correction on its own initiative pursuant to Section 119 of the Victorian Civil and Administrative Tribunal Act 1998, or making an application under Section 119.

13. It would be left the Permit Holder to decide what action it wishes to take, if any. The Permit Holder should advise all other parties of any request or application that is made to the Tribunal, and confirm to the Tribunal that such advice has been provided. An appropriate Direction will be made.