The order of the Tribunal is that the decision of the Responsible Authority is varied. The Tribunal directs that Permit No. P04/339 must contain the conditions set out in the Notice of Decision issued by the Responsible Authority on 3 November, 2004 except that Condition 2 must be amended to read:

The use of the land for the purpose of a solid fuel depot must cease on 30 September, 2008.

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

1 Oral reasons for the decision were provided by me at the hearing on 21 February, 2005.

2 In giving these reasons for my decision, I do not propose to set out the details of;

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the planning scheme provisions that apply, or

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the background to the Council's consideration of the permit application and decision.

3 The relevant background facts in relation to these matters were comprehensively set out in the written submissions . I note that the relevant background facts were not disputed in any significant way. I have also had the benefit of an extensive array of photographs, plans and other material which have given me a very good understanding of the land and its context and the proposal.

4 In coming to my decision I have considered the matters raised in the submissions, the relevant matters under the planning scheme and legislation together with the details of the proposal for which a permit is being sought.

5 The following is a summary of the reasons provided by me at the conclusion of the hearing

6 The review site is located on the southern edge of Mildura's residential area and is currently zoned rural. The review site is currently being used as a solid fuel depot without a planning permit (this Application for Review follows enforcement action brought by the Council) and surrounding sites are primarily planted to vines. The review site and its general locality is designated by the Council for future residential development and Amendment C 28 to the Mildura Planning Scheme proposes to rezone this locality from Rural to Residential 1, with a Development Plan Overlay. A Panel appointed by the Minister to hear submissions on this Amendment has recently presented its recommendations to the Council and has endorsed the Council's proposed rezoning and the application of the Overlay.

7 The principal issue in this matter focuses on the terms of condition 2 contained in the Notice of Decision to Grant a Permit , which causes the permit to expire in five years from the date of the grant of the permit.

8 The Council and the permit applicant submitted that the terms of this condition were sufficient to ensure that the use of the land would not prejudice the future development of the area for residential purposes. The Applicant for Review submitted that the development of this locality for residential purposes is likely to proceed within the five year life of the permit and that the use of the land for a solid fuel depot is inappropriate in a residential area and would prejudice the ability of surrounding land owners to subdivide their land for residential purposes.

9 At the conclusion of the hearing I provided the parties with an opportunity to discuss the terms of condition 2 and in particular to determine whether or not agreement could be reached between then as to an acceptable time frame for the expiry of the permit.

10 Upon resumption of the hearing Mr Williams advised that his clients would accept a condition requiring the permit to expire 24 months after the approval of a Development Plan for the area affected by the proposed Development Plan Overlay. Given the uncertainty concerning the timing of the approval of Amendment C28, the fact that the Amendment remains subject to Ministerial approval, and the uncertainty concerning the timing of the approval of a development plan, it is not possible to determine whether such a condition would reduce or extend the five year life of the permit currently provided for under the Notice of Decision.

11 Ms Bright advised me that her client, the permit applicant, would accept a condition requiring the permit to expire on 30 September, 2008. The imposition of such a condition would amount to a two year reduction in the life of the permit from that permitted under the Notice of Decision. The Council retained its position that a five year time frame was appropriate.

12 I advised the parties that I considered a permit condition specifying a date of expiry of the permit being two years less than that provided for in the Notice of Decision represented a reasonable and acceptable outcome and that I was prepared to direct that a permit be issued incorporating such a condition. For the reasons outlined above, I consider that such a condition is preferable to that proposed by Mr Williams because it provides a higher degree of certainty as to when the permit expires, and does not seek to tie the expiry date to events over which the parties have limited or no control.

13 The order of the Tribunal is that the decision of the Responsible Authority is varied and it is directed that a permit is issued containing the conditions set out in the Notice of Decision issued by the Responsible Authority on 3 November, 2004 except that Condition 2 must be amended to read:

The use of the land for the purpose of a solid fuel depot must cease on 30 September, 2008