1. The decision of the Responsible Authority in relation to planning permit application No. P02/300 is affirmed and it is directed that no permit issue.

2. The decision of the Responsible Authority in relation to planning permit application No. P02/362 is set aside. A permit is granted and the Responsible Authority is directed to issue a permit for the land at 5230 Great Ocean Road, Wongarra. The permit will allow:

The construction of alterations and additions to the existing buildings, the construction of a swimming pool and tennis court, the removal of vegetation and the use of the land for the purpose of group accommodation comprising eight dwellings, including a manager's residence.

1. Before development starts, 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 as evidence of their approval. The plans must be drawn to scale with dimensions and three copies provided. The plans must be generally in accordance with the Plans submitted with the application (Reference 2544-3 and 25441A to the extent of the tennis court and swimming pool) but modified to show:

(a) The tennis court aligned east-west as depicted on the landscape plan by John Patrick Landscape Architect's, drawing No. 03-043, dated July 2003;

(b) A detailed landscape plan prepared by a qualified Landscape Architect to identity all native vegetation to be removed, and to include extensive planting of native vegetation to effectively soften the development from the Great Ocean Road and from adjoining properties. The landscape plan must be generally in accordance with the plan referred to in condition 1(a) but amended to show

(i) deletion of the expanded car park, the six additional dwellings and the vegetation to be removed from in front of those dwellings.

(ii) the use of creepers on the western side of the tennis court fence or an alternate screening treatment.

(c) Full construction details for the tennis court excavation and fill, including details of engineered retaining walls as provided for under conditions 7, 8, 9 and 10.

(d) A schedule of the external colours and materials of the building, consistent with condition 12.

2. The layout of the site, the size of the proposed buildings and works and the external materials and colours as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3. The areas set aside for parked vehicles and access lanes must be:

(a) Constructed to the satisfaction of the Responsible Authority.

(b) Properly formed to such levels that they can be used in accordance with the plans.

(c) Surfaced with an all-weather sealcoat or surfaced with crushed rock or gravel to the satisfaction of the Responsible Authority.

(d) Drained and maintained to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times.

4. Before any new dwelling approved by this permit is occupied the applicant must obtain consent from the Victorian Environment Protection Authority in relation to any proposed changes to the Wastewater Treatment Plant. A copy of the consent letter must be forwarded to the Colac Otway Shire.

5. All run off from stormwater, including overflow from water storage and waste water, must be taken to a legal point of discharge to the satisfaction of the Responsible Authority.

6. All excavation works upon the subject site must be kept to the absolute practicable minimum and to the satisfaction of the Responsible Authority.

7. Retaining walls must be constructed to support all fill and cut excavations. Such retaining walls must be at least to natural ground level and designed by a qualified Engineer to the satisfaction of the Responsible Authority.

8. Where the retaining wall cannot be founded on solid rock, the design of the retaining wall must incorporate deep piles, ground anchors or similar anchoring device to achieve slope retaining capacity.

9. Anchoring devices for the retaining wall must be installed to the satisfaction of the Responsible Authority by a competent practitioner.

10. The retaining wall shall be constructed immediately following excavation of the tennis court.

11. Following completion of the tennis court, the proponent's Geotechnical Engineer must inspect the site and confirm in writing that the stability of the land under the conditions of its intended use is acceptable as defined in the Australian Geomechanics Society Landslip Risk Management Guidelines dated March 2000. A copy of the report must be provided to the Responsible Authority.

12. The roof and exterior walls of the development must be constructed of non-reflective materials which will effectively blend the development in with the natural colours of the surrounding landscape (ie. not white, off-white, beige, cream, fawn, light yellow or similar colour, galvanised or zincalume).

13. The landscaping shall be installed prior to the occupation of the additional dwellings authorised by this permit and shall be permanently maintained to filter views of the development from the Great Ocean Road and from adjacent properties to north, east and west to the satisfaction of the Responsible Authority.

14. A security bond of $5,000 payable to the Colac Otway Shire must be made prior to the commencement of any buildings, and/or works authorised by this permit, for the landscaping of the development.

15. Upon completion of the landscaping works to the satisfaction of the Responsible Authority, the Responsible Authority may refund up to 80% of the landscaping bond after receiving written request from the applicant. The balance will be refunded upon the completion of a two (2) year maintenance period.

16. Upon completion of a two (2) year maintenance period the Responsible Authority may refund all or part of the security deposit after receiving written request from the applicant.

17. In the event that the landscaping works are not completed and or maintained to the satisfaction of the Responsible Authority, the Responsible Authority may complete or maintain the landscaping works and deduct the cost thereof, including supervision fee from any security deposit lodgement.

18. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.

19. No additional advertising signs may be installed without the prior written consent of the Responsible Authority.

20. Except with the further written consent of the Responsible Authority the tennis court and swimming pool must not be flood lit.

21. This permit will expire if the development authorised by this permit is not completed within two (2) years from the date of this permit unless an extension of time is approved by the Responsible Authority. The written request for an extension of time must be received before 3 months have elapsed after the date of expiry.

22. An on-site inspection is to be arranged with the Department of Natural Resources and Environment. Officer/s prior to any construction occurring on the site to assess stormwater management options for the site.

23. The applicant must notify the EPA South West Region before the wastewater treatment plant is altered in any way.

24. The construction of further accommodation units must not result in the rate of discharge from the wastewater treatment plant exceeding 850 litres per day as required by the EPA licence.

25. The applicant shall enter into negotiations with Powercor Australia for any increase to the power supply required in relation to additional dwellings approved by this permit.

Mr M. Townsend of Counsel instructed by Harwood Andrews Solicitors.

Mr J. Cicero of Best Hooper, Lawyers. He called the following persons to give evidence:

1. This proceeding comprised two separate applications. Both are made under Section 77 of the Planning and Environment Act 1987 (the Act) to review decisions of the Colac Otway Shire Council to refuse to grant permits (in Permit Application Nos. P02/300 and P02/362) for the land at 5230 Great Ocean Road, Wongarra.

2. Permit Application P02/300, which was the subject of Application for Review P61/2003, seeks permission:

* to construct alterations and additions to the existing tourist accommodation facility, including converting the existing restaurant into two, two bedroom dwellings;

Group accommodation is defined at Clause 74 of the Colac Otway Planning Scheme to mean:

"Land, in one ownership, containing a number of dwellings used to accommodate persons away from their normal place of residence."

3. Permit Application No. P02/362, which is the subject of Application for Review P60/2003, seeks permission to construct six additional part two storey dwellings, to be used as group accommodation, as well as to remove vegetation.

4. We were advised that all buildings and works were originally the subject of a single application for permit. In an endeavour to facilitate a speedy consideration of what were regarded as the less controversial aspects of the proposal, the original application for permit was amended by deleting the six additional dwellings and making these the subject of a separate permit application. Later again, following the Council's refusal of both applications and the lodging of the applications for review, the Tribunal, by consent, amended both applications for permit to include the use of the land for group accommodation and the removal of vegetation.

5. The site is located on the landward side of the Great Ocean Road in Wongarra. Wongarra is a rural district located between Kennett River to the east and Stenes Creek to the west, some 13km east of the township of Apollo Bay. Driving along the Great Ocean Road, the impression of Wongarra is of rolling coastal hills with scattered dwellings, widely separated across the landscape.

6. The subject land is irregular in shape. It had a frontage of 198m to the northern side of the Great Ocean Road and an area of some 4.4ha. There is a cliff, with a rock platform below, on the southern side of the Great Ocean Road.

7. The site is currently occupied by a tourist accommodation facility comprising nine self-contained one bedroom units known as Whitecrest. Whitecrest also incorporates a manager's residence, a restaurant and a separate recreation room. This development is aligned in a row, some 70m long, along the contour and set back some 30m from the road. The buildings have been recently painted in muted tones and comprise weatherboard, painted brick and cement sheeting with a skillion roof form that follows the general slope of the land.

8. The land rises gently from the road to the main line of buildings. It then rises more steeply towards the rear.

9. We were advised by Mr Cicero that a building was originally constructed on the land in the early 1980s and without the need for a planning permit. The building comprised four units fitted out with 12 bunks, a commercial sized dining room and a fifth unit occupied by the manger. At this time the development was used primarily by groups such as school children and clubs.

10. After a year or so a permit was obtained to run a restaurant with a BYO licence although, as noted by Mr Cicero, it is unclear from the applicant's records whether the permit was a planning permit, a liquor licence or some other type of permit. In 1983 a manager's residence was constructed and in 1989 a planning permit (No. OPS-101) was issued authorising the construction of 12 additional units. Six of these were completed in 1989. Although initially extended, the permit has since expired. As advised by Mr Cicero an on-premises licence was issued in 1989 and the premises underwent a name change to Whitecrest Resort. By this time the business had moved on from its school camp style origins.

11. The subject land is lightly vegetated in part, particularly to the rear of the existing building and towards the more westerly side of the land. We were advised, supported by old photographic evidence, that this is primarily revegetation and that at one time the land, like land to the east, was cleared for grazing. With withdrawal of stock and conversion to the tourist accommodation use, the re-growth has occurred - including some weed species.

12. It is proposed to construct alterations and additions to the existing buildings including; converting the existing restaurant to two, three bedroom dwellings, converting the existing manager's first floor area into a separate two bedroom dwelling and constructing an additional six, two bedroom dwellings attached to and extending westward of the existing row of six dwellings and on about the same contour, some 30m back from the Great Ocean Road. The new dwellings would differ in appearance from the existing because, by being two bedroomed with one bedroom having an outlook towards the sea a first floor window would be introduced when the existing dwellings have no such windows. The dwellings would also be slightly wider than the existing but would otherwise be finished in similar external materials and colours. The linear length of the development along the contour would increase from about 70m to about 125m.

13. Construction of the six additional dwellings would necessitate the widening of an existing car park area benched into the rise above and to the rear of the existing and proposed dwellings. This would necessitate cutting back into the slope and partly filling the existing car park area. In both cases the exposed batters would be supported by retaining walls. The same would occur with the proposed tennis court to be located on an already partly benched area to the west of the main driveway and also some 30m back from the Great Ocean Road.

14. The plans accompanying the application showed the tennis court in a north-south alignment and cut into the slope in a manner necessitating a very significant cut. At the hearing the landscape plans presented by Mr Patrick showed the court aligned east-west, thereby necessitating a reduced cut and fill with the retaining walls above and below likely to be no more than 1.5m high. By being realigned the court comes to within 2m of the western boundary compared to 9m originally.

15. The six dwellings and the benching in of the car park and tennis court would require removal of some vegetation. The swimming pool proposed for the eastern side would not require vegetation removal. The pool is shown as set back some 10m from the Great Ocean Road and 11m from the eastern site boundary.

16. The subject land is zoned Environmental Rural under the Colac Otway Planning Scheme. Compared to the Rural Zone, where agriculture is as of right, almost all uses (other than those adopting codes of practice and which are as of right in most zones) require a permit in the Environmental Rural Zone. So too does development associated with a use for which a permit is required. A primary consideration in the Environmental Rural Zone is the environmental impact that such uses and development may have on the special environmental values of the area. The relevant purposes of the Environmental Rural Zone, in addition to implementing the State and Local Planning Policy Framework are:

"* To give effect to the environmental outcomes specified in the Schedule to this zone [which in this case is to prevent land degradation including soil erosion, salinity and vegetation removal because of agricultural and other activities].

* To conserve and permanently maintain flora and fauna species, soil and water quality and areas of historic, archaeological and scientific interest and areas of natural scenic beauty or importance so that the viability of natural eco-systems and the natural and historic environment is enhanced.

* To encourage development and the use of the land which is in accordance with sound management and land capability practices, and which takes into account the environmental sensitivity and the bio-diversity of the locality.

* To ensure that subdivision promotes effective land management practices and infrastructure provision." (emphasis added and the words in square brackets are the Tribunal's)

17. The subject land is also within a Wildfire Management Overlay and an Erosion Management Overlay. The former was not in issue in this proceeding. We see no reason therefore to make further reference to it.

18. At Clause 44.01, the stated purpose of an Erosion Management Overlay, in addition to implementing the State and Local Planning Policy Framework, is to protect areas prone to erosion, land slip or other land degradation processes by minimising land disturbance and inappropriate development.

19. In areas covered by the Overlay a permit is required to both construct buildings and works and to remove vegetation. There are exemptions in relation to vegetation removal however these are not applicable here.

20. The land is affected by Schedule 1 of the Overlay, referring to the Otway Coastal Foothills. Within this area applications for permit must be accompanied by a geo-technical report prepared by a geologist or geo-technical engineer with experience in slope stability problems. A Landslip Risk Assessment Report accompanied the permit application. It concluded that the risks to life and property on this site was acceptable.

21. Clause 65 of the Planning Scheme sets out decision guidelines that must be considered, as appropriate, before deciding on any application for permit under the Scheme. This clause commences with the following statement:

"Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause."

22. Having regard to the issues raised in this proceeding the decision guidelines of particular relevance are; the Municipal Strategic Statement, in particular Clause 21.04-2 referring to the coast and its environs, the Local Planning Policy at Clauses 22.01, referring to main roads and scenic routes, the purposes of the Environmental Rural Zone and Erosion Management Overlay and the Victorian Coastal Strategy. The latter is referred to in the State Planning Policy Framework. It must also be considered, if the circumstances appear to so require, pursuant to Section 60(1)(b)(ii) of the Act. This subsection provides for a responsible authority to consider any strategic plan adopted by a Minister, Government department, public authority or municipal council. The Coastal Strategy is such a document and was referred to and relied upon by all parties to this proceeding.

23. The principal questions to be decided in this proceeding are:

* Firstly, whether Wongarra can be described under either the Local Planning Policy Framework or the Coastal Strategy as a "small coastal township" and therefore eligible for the limited redevelopment or expansion of existing facilities.

* Secondly, whether the proposed development is consistent with the main road/scenic route local Policy at Clause 22.01, which has as an objective to ensure a high level of visual amenity along the Great Ocean Road "by blending the development into the environs" and

* If no to either or both of the above, whether the redevelopment and expansion of this existing facility nevertheless represents an appropriate or acceptable outcome in locational, environmental or design terms.

24. Also at issue was the nature of the ownership of the existing and proposed dwellings. The respondent parties contended that company share ownership of the individual dwellings is tantamount to a subdivision into individual lots, which is otherwise prohibited in the Environmental Rural Zone where the minimum lot size is 40ha.

25. An emphasis of the Coastal Strategy is for future development along the Victorian coast to be restricted to "defined" settlement areas with the areas between remaining "largely undeveloped". At Figure 8 of the Strategy, consideration is given to what defines suitable development on the coast. On the subject of where development would be appropriate the strategy suggests:

"A primary focus of this strategy is to protect the values of the coastal environment whilst providing for appropriate sustainable use. To this end, development pressure and infrastructure will be directed away from sensitive areas (most of the coast) and managed within:

1. Defined existing settlement (activity nodes); and

26. It was not suggested that the subject land is within a recreational node. Rather, what was in issue was whether Wongarra can be regarded as an existing settlement.

27. Existing settlements are defined at Figure 8 as ranging from coastal cities and towns to "smaller coastal townships". The clear direction of the strategy is to `preserve' coastal areas between the cities, towns and smaller coastal townships.

28. It was also not suggested that Wongarra is a coastal city or town. Coastal townships are defined in the strategy as "settlements":

* That generally exhibit a lower level of use and regional visitation;

* That provide limited opportunities for development in accordance with the ecologically sustainable development principles for coastal planning and management outlined in the strategy;

* That have identified strategic priorities for limited provision of improved facilities or sites where existing facilities provide a limited opportunity for redevelopment or expansion to increase public benefit; ...

* With no significant planned population growth in the future; and

* With limited infrastructure to sustainably support further development." (emphasis added)"

29. The stated objective for smaller coastal townships is to limit the scale and intensity of development to that "appropriate" to a township in a non-urban environment.

30. The Planning Scheme at Clause 21.04-02 sets out the Municipal Strategic Statement's (MSS) objectives for the Otway Coast and its environs, as well as strategies to achieve these objectives. Consistent with the Coastal Strategy, the MSS recognises the need to promote a pattern of settlements in the coastal strip that recognises a "balance" between opportunities for growth and the retention of environmental and cultural qualities. In this regard, specific reference is made to promoting development that; demonstrates compatibility with the Coastal Strategy and the Shire's Coastal Town Study, limits expansion of other coastal settlements and discourages development in the intervening land "except where high quality design and minimal environmental impact can be demonstrated".

31. At Clause 21.04-10, objectives and strategies for the Shire's "smaller communities" are set out. Wongarra is not included in the communities listed here, whereas, among others, Kennett River, Wye River and Skenes Creek are. Key objectives are to provide an attractive, safe, residential environment and "strengthen the economic future of the small communities in the Shire". Implementation of this strategy is to be achieved by, among other things, encouraging the location of tourist accommodation facilities "within small communities in the region". As Wongarra is not identified as one of the Shire's smaller communities it cannot be said that the MSS encourages tourist accommodation to establish there.

32. A specific local policy at Clause 22.05 goes on to set out objectives and policy guidance for "Coastal and Otway Ranges Townships". The policy is stated to apply to all land included in a Residential 1 Zone, Township Zone, Low Density Residential Zone, Business 1, 2, 3 and 4 Zones and Industrial Zones within a set list of townships. These townships include Apollo Bay, Skenes Creek, Wye River and Kennett River, but also Wongarra. However, despite Wongarra being listed, the policy cannot be said to apply as there are no such zones in Wongarra. Rather, the whole of Wongarra is zoned Environmental Rural.

33. It is relevant to note however that the objective of this local policy is to ensure that all development and use in such settlements recognises their "different roles as centres containing a range of community and other facilities, while also recognising the unique coastal and Otways Ranges environment" and "the need to minimise the visual impact of development on the scenic coastal and Otways Ranges environment".

34. Having regard to both the Local Policy Framework and the Coastal Strategy, we are not persuaded to accept Mr Milner's opinion that Wongarra can be described as a coastal settlement or town where existing facilities provide a limited opportunity for redevelopment or expansion. Rather, we think it open to find that Wongarra is best described as a rural district and not a coastal township, or even one of the Shire's "smaller communities". Put simply, there is no central place that could be called Wongarra. As submitted by Mr Townsend, there are no shops, no schools or post offices, no halls or other facilities. This is in distinct contrast to places such as Skenes Creek, Wye River and Kennett River. We think it open to find therefore that the rural district of Wongarra falls within the category of an "area between settlements" which, under the Coastal Strategy and the Local Planning Policy Framework, are to remain largely undeveloped. This is not to say that the policy framework precludes the grant of a permit for the upgrade or expansion of an existing facility. Indeed, as noted above the MSS at Clause 21.04-02 refers to the opportunity for an exception to be made "where high quality design and minimal environmental impacts can be demonstrated" and we go on to consider this later in our reasons. However, the clear weight of policy is to avoid development between defined settlements.

35. Clause 22.01 of the Planning Scheme sets out a Local Policy for Main Roads and Scenic Routes within the Shire. The policy recognises the importance of transport linkages to the economic wellbeing of the Shire and the need to protect the amenity of scenic routes, in order to conserve landscape values and enhance the shire's tourism attractiveness. The Great Ocean Road is a road referred to in this policy. Among the objectives of the policy are the protection of scenic roads from unsympathetic development that would detract from the beauty of the area and ensuring that a high level of visual amenity is achieved by "blending the development into the environs".

36. At Clause 22.01-3, design guidelines for buildings and works, building materials and landscaping are set out. It is policy for buildings to not be located closer than 50m to the Great Ocean Road, except where the Responsible Authority is satisfied that geological constraints or topography make these setbacks impracticable. It is also policy for building envelopes to be discretely sited so that a development does not detrimentally affect the visual environs of the scenic route and, where possible, building envelopes should be sited away from the road, below ridge lines and adjacent to existing stands of vegetation. It is also policy for buildings to be "grouped in a cluster setting" and for the slope of roofs to "relate to the topography of the surrounding land forms"..

37. It was the evidence of Mr Milner that the siting of the additional six dwellings would sit discreetly in the landscape when viewed from other parts of the Great Ocean Road further to the west and east of the site. He acknowledged that views from directly in front of the site would be "altered". He was of the opinion however that this was less critical if, "there will be no adverse impacts on any of the important view sheds that must be protected".

38. Having inspected the subject land and surrounding area we accept, given the topography and distances involved, that the six additional dwellings would be relatively obscured from the Great Ocean Road further to the west of the subject land. We also accept that from the east, the existing buildings would tend to mask the proposed new dwellings, a point well illustrated in photographs 2(h) and 2(i) of Mr Milner's witness statement. However, from the road to the front of the land the extra dwellings would read as a substantial, indeed 58% enlargement of what is already a development that could not be said to be discretely sited or one that blends into the environs.

39. Furthermore, what might be able to be described as en existing "cluster" would be transformed into an essentially linear development with less ability, we find, to blend into its rolling hills context. We have concerns also that the change to the roof line, to accommodate seaward facing, first floor windows, would detract from the resort's existing, clean architectural lines.

40. We are not persuaded therefore that the additional six dwellings could be said to represent an acceptable outcome in terms of the local policy for main roads and scenic routes.

41. We have noted already that the MSS recognises that outside of defined settlements there may be limited opportunity for tourist development provided they demonstrate high quality design and minimal environmental impact.

42. It was submitted also by Mr Cicero that our assessment of this proposal should take account of the economic benefits of a development of this nature and that in exercising our discretion we should seek to balance these benefits against any visual or environmental impact of the development. The MSS, for example at Clause 21.04-07, supports "high quality tourist and recreation developments that clearly provide linkages to other regional features such as the coast ...". Furthermore, growth in tourism is clearly encouraged under the Scheme's State and local policy framework.

43. While we agree that the grant of a permit to construct six additional dwellings for this group accommodation use may well provide economic benefits for the Shire - by enabling an increase in the number of persons visiting the region - we are not persuaded that this benefit should necessarily outweigh the need for high quality design, with minimal environmental impact.

44. It was the evidence of Mr Brett Lane, an ecologist called to give evidence on behalf of the permit applicant, that the revegetation shown on Mr Patrick's Landscape Plan represented a net gain in relation to the vegetation to be removed. This, he suggested, would be particularly so if an environmental management plan was required as a condition of permit and included provision for ongoing weed eradication.

45. It was the opinion also of Mr. Wayne Smith, the Civil Engineer called to give evidence on behalf of the applicant, that engineering measures, stormwater drainage and the existing water supply and wastewater treatment "are adequate to enable the proposed building extension to proceed". It was his evidence also that the existing levels of off-site wastewater discharge could be reduced, not only by the provision of water saving devices for all existing and proposed dwellings and through the loss of the restaurant, but also by recycling wastewater in the proposed additional dwellings. The existing situation of off-site wastewater discharge is not best practice and certainly not supported by State Environment Protection Policy Waters of Victoria. Although discharged under licence from the EPA we accept that this present practice is an environmental impact of the current operation that detracts from its appropriateness in this coastal location.

46. It is our conclusion that despite the evidence pointing to minimum additional environmental impact, the visual impact of the design, as extended, would be too great and goes too much against what we consider to be the outcomes anticipated under the coastal strategy and the local planning policy framework.

47. We would be surprised if the existing development would be granted a permit under the current planning regime, particularly since the introduction of the Coastal Management Act 1995 and following that the Victorian Coastal Strategy. We note also that none of the parties to this proceeding or the witnesses called to give evidence on behalf of the permit applicant were of a significantly different opinion.

48. As a general principle the policy framework supports coastal development in defined centres. For places in between the design outcome is for development to be discretely located such that it blends with the landscape and has minimal environmental effects. The existing development has some environmental effect and does not blend with the landscape. The proposed additional six dwellings would exacerbate this non-compliance - notwithstanding Mr Patrick's Landscape Design.

49. It is our conclusion, therefore, that no permit should issue in relation to Permit Application No. P02/300 for the construction and use of the six additional dwellings. We are of a different view, however, in relation to the refurbishment of the existing complex, including the conversion of the restaurant into two dwellings plus the construction of the tennis court and the pool.

50. We accept that the substitution of the restaurant and manager's flat with a net increase of three dwellings is not significant in environmental terms and we consider the alterations to the east elevation and restaurant roofline, to facilitate these changes, to be uncontroversial. Indeed we think the eastern elevation to be a positive improvement in architectural terms.

51. It was clear also that there was little put against the addition of a pool, provided appropriate landscaping is introduced to blend this facility into the more exposed south eastern corner of the site. We are confident that Mr Patrick's Landscaping Design represents an appropriate solution.

52. On the matter of the tennis court, we acknowledge that its construction requires some additional clearing and benching into the slope. Furthermore, with the realignment from north-south to east-west the court would come closer to the boundary. This alignment is however a far better outcome in environmental terms than the north-south alignment. The site chosen for the court is also partly cleared and benched and is well screened by existing vegetation. We accept that with some further thought to screening the court's western fence, with an appropriate landscape treatment, that the court's construction is acceptable.

53. In reaching our conclusion on design and environmental impact we have been mindful of other recent decisions by the Shire in relation to the expansion of existing tourist accommodation facilities and which were brought to our attention by Mr Cicero. In relation in particular to Seafarers at 6080 Great Ocean Road, we admit to some surprise at the Shire's decision. We are not persuaded, however, that this decision necessarily binds us to a conclusion that the subject application is therefore appropriate.

54. The Tribunal is entitled to give weight to other decisions made by the relevant Responsible Authority and in the context of similar planning provisions, but we are not bound to follow them. We must determine the application on the basis of the submissions and evidence before us and the statutory provisions as we find them. This being the case it is our conclusion that the additional six dwellings are inconsistent with the outcome sought under the planning policy framework.

55. The final issue raised in this proceeding was whether the company share ownership scheme that operates or is intended to operate in relation to this site is tantamount to subdivision which would be otherwise prohibited given the four hectare minimum lot size that applies in the Environmental Rural Zone.

56. We think this issue raises two questions. Firstly, whether a company share scheme is a form of subdivision, in that it enables sole occupation of the individual dwellings by the shareholders and secondly, whether a use that adopts such an ownership structure should be refused a permit on the basis that it is tantamount to an approval for something that would be otherwise prohibited.

57. On the first question we can say quite briefly that a company share scheme is not subdivision as it does not result in "the division of land into two or more parts which can be disposed of separately", that being the definition of subdivision in the Subdivision Act 1988. Indeed it was not really put to us that there could be any other view.

58. The second question goes more to the discretion to be exercised when considering whether to grant a permit for a use of land in the knowledge that ownership of such land was under a company share arrangement. We note that it is unusual to enquire into the nature of ownership of a parcel of land in the context of determining whether to grant a permit for the use of that land. We would not entirely reject the proposition that this might be a relevant factor in some cases. There may be instances for example, where the existence of numerous sole occupants of sub elements of a proposed land use might detract from the suitability of that use, but we are not persuaded that this is the case here.

59. In the subject case the use proposed is group accommodation as defined in the scheme. It would appear that this use has evolved over time from something closer to a guest house or lodge in the 1980s and we are aware that there is an issue as to the land's existing use rights. The grant of a permit for group accommodation would put this matter to rest.

60. We were provided with no good reason to refuse a permit on the basis of it being operated under a company share scheme. The proposed use is clearly one akin to holiday accommodation rather than permanent accommodation and the company documentation provided to us confirms that the dwellings are to be used, consistent with the Planning Scheme's definition, as accommodation other than the occupant's "normal place of residence". An exception might be the manager's residence.

61. We , understand that when the shareholders are not in residence these dwellings would be available for use by visitors, upon contact with the manger. This clearly makes the use a holiday or tourist use which, as we have already acknowledged, is identified within the Planning Scheme as an appropriate activity for this coastal region. We find in these circumstances that it is appropriate to grant a permit to formalise the use of this land for group accommodation.

62. To conclude, the grant of a permit for group accommodation and for alterations and additions, including a tennis court and pool and some minor vegetation removal, will serve to formalise the existing use of this land and at the same time enable a marginal expansion of an existing facility in a manner that can be discretely accommodated, will blend into the landscape and have marginal environmental impact.

63. The expansion of the use to accommodate a 58% increase in its visual impact - even with the benefits of further screen planting - would be a substantial increase of an existing facility that is already inconsistent with the outcomes sought under the Planning Policy Framework. Although the ecological and engineering evidence in this proceeding supported a finding that any environmental impact would be within acceptable parameters, we have not been persuaded that the additional visual impact is an acceptable outcome in terms of the decision guidelines of the Colac Otway Planning Scheme.