The decision of the Responsible Authority is varied. The Tribunal directs that Permit No 584/2004 must contain the conditions set out in the Permit No 584/2004 for a Safeway Petrol Plus Station issued by the Responsible Authority on 9 November 2004 with the following modifications:

1. Deletion of conditions 1(a), 1(b), 1(c), 1(e).

2. A new Condition 1(a) to read as follows:

The inclusion of a timber slatted fence to at least 3 metres in height to be placed on the south elevation of the kiosk in line with the staff car park for the length of the kiosk (approximately 8 metres) to the satisfaction of the Responsible Authority.

Existing condition 1(d) to be renumbered to condition 1(b).

3. Conditions 7(b) and 7 (c) are to be amended as follows

7(b) A significant visual screen to the Shell Road frontage of the site immediately abutting the service station generally in accordance with the landscape plan submitted to the Tribunal prepared by John Patrick Landscape Design Job No. 05-029 but subject to the changes required by the Responsible Authority and to the satisfaction of the Responsible Authority.

7(c) Additional screen planting on the southern separator island within Shell Road to provide an additional visual buffer to the service station site generally in accordance with the landscape plan submitted to the Tribunal prepared by John Patrick Landscape Design Job No. 05-029 but subject to the changes required by the Responsible Authority and to the satisfaction of the Responsible Authority.

For landscaping on the southern separator island or on any Council owned land, the Applicant is to maintain the landscaping until it has been established to the satisfaction of the Responsible Authority, including any dead, diseased or damaged plants that are to be replaced but not for longer than a period of two years.

3. Condition 2 to be amended to add the words "to the satisfaction of the Responsible Authority" and delete the words 'car wash' in the first paragraph as follows:

2. Prior to the construction activity commencing, a wastewater management plan must be submitted for approval to the Council and to the satisfaction of the Responsible Authority. This plan should cover measures to collect and remove or recycle waste petroleum products, minimise sediment runoff, control litter and manage sewerage and sullage waste. It should also incorporate the following principles and elements:

(a)No wastewater should be discharged off site or disposed of to land without appropriate treatment.

(b) All wastewater generated at the premises must be treated and disposed in accordance with the Australian Institute of Petroleum Code of Practice "The Control of Water Effluents from Service Stations" (AIP CPI, latest edition), subject to condition 5(a) above.

(c)An emergency response plan which will clearly articulate the procedures that will be employed when there is a major fuel spill. It will focus on preventing the discharge of hydrocarbons to the stormwater drainage system, in particular, the vegetated bioretention systems being built along the eastern boundary of the supermarket development.

4. Condition 12 to be deleted and replaced with:

The use hereby permitted may only operate between the hours of 6am and 12 midnight each day.

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.

Mr Graeme Peake, Barrister. Evidence was called from:

Ms Colleen & Mr Hall also on behalf of B Hall & C Whelan, Mr A Cook

1 This is an Application under Section 80 of the Planning and Environment Act 1987 [the Act] to review conditions imposed by the Greater Geelong City Council [the Council] in Planning Permit no. 584/2004.

2 Planning permit 584/2004 was issued for a Safeway Petrol Plus Station generally in accordance with the endorsed plans on 9 November 2004.

3 The conditions under review include:

1. Before any buildings and works commence on the site, 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 those submitted with the application, but modified to show:

(a) Alterations to the design of the kiosk, canopy to better reflect the urban design of the recently developed shopping centre.

(b) Colours of external cladding materials to be used in the construction of the kiosk and canopy.

(c) Materials and colours of paved areas within the development.

Prior to the construction activity commencing, a wastewater management plan must be submitted for approval to the Council. This plan should cover measures to collect and remove or recycle wast petroleum products, minimise sediment runoff, control litter and manage sewerage, sullage and car wash waste. It should also incorporate the following principles and elements:

a)

No wastewater should be discharged off site or disposed of to land without appropriate treatment.

b)

All wastewater generated at the premises must be treated and disposed in accordance with the Australian Institute of Petroleum Code of Practice "The Control of Water Effluents from Service Stations" (AIP CPI, latest edition), subject to condition 5(a) above.

c)

An emergency response plan which will clearly articulate the procedures that will be employed when there is a major fuel spill. It will focus on preventing the discharge of hydrocarbons to the stormwater drainage system, in particular, the vegetated bioretention systems being built along the eastern boundary of the supermarket development.

7 Prior to construction commencing on site, a landscape plan, prepared by a suitably qualified and experienced person or firm and to the satisfaction of the Responsible Authority, must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

(b) A significant visual screen to the Shell Road frontage of the site immediately abutting the service station.

(c) Additional screen planting on the southern separator island within Shell Road to provide an additional visual buffer to the service station site.

12 The hours of operation allowed for the petrol station are as follows:

4 The permit was advertised and 8 objections were received. Issues of concern raised included health effects due to the location of the petrol plus, environmental impact, increase in crime and increase in number of vehicle movements.

5 At the hearing parties tabled and spoke to written submissions. Evidence was called from Mr Rob Milner and Mr Rob Burton.

6 Mr Peake advised that a landscaping plan had been prepared by Mr John Patrick. This plan was not being submitted as an amending plan (as it had not undergone the necessary Practice Note direction and circulated to all parties) but was for information purposes. At the completion of the Council's submission, I adjourned the matter so that the residents could review the plan and provide any comments.

7 After the hearing, I inspected the site and locality.

8 The subject site is an existing Safeway supermarket. The overall development of the site is relatively new having recently completed the supermarket and specialty shops. The Petrol plus service station and a convenience store are yet to be constructed. The shopping centre is located in the north eastern portion of the site and is surrounded by car parking to its south and western boundaries.

9 The site of the petrol plus is within the south eastern corner of the shopping centre car park, facing Shell Road. It is approximately 110 metres east of the Kingston Downs Drive intersection and 16 metres from the eastern boundary. It occupies an area of approximately 1028 square metres.

10 A 2.5 metre wide strip of landscaping has been planted within the site along the frontage boundary facing Shell Road. This planting strip also accommodates heavy timber bollards that extend around the boundary of the site.

11 To the east is a dedicated two way vehicle entry/exit point. It is noted that bollards and a 2.5 metre wide landscape strip planted with native grasses mark the southern boundary of the petrol station site, separating it from the Shell Road footpath.

12 The site is surrounded by residential development in all directions. Dwellings on the opposite side of Shell Road directly face the site and are separated by a dual carriageway, two median strips and a service road running parallel to Shell Road. I note that there is no landscaping in the median strips.

13 The approved development approves the construction of a Safeway Petrol Plus . The kiosk building is small measuring 7 metres in width and 3.4 metres in height. This structure is located 13 metres from Shell Road. The kiosk and canopy are in the corporate Safeway/Caltex colours of green, red and white. The canopy reaches a height of 4.5 metres measured to the underside.

14 The existing 2.5 metre wide landscaping strip at the front of the site, between the petrol station and the Shell Road footpath will remain.

15 A range of advertising signage was applied for but did not gain approval. The signs include:

•

A freestanding internally illuminated sign, located in front of the kiosk within the landscape strip and facing the Shell Road traffic. The sign measures 6.0 metres in height and 2.170 metres in width. The sign contains information regarding pricing.

•

An internally illuminated corporate logo sign is proposed to the eastern fascia of the canopy and above the doorway on the fascia of the kiosk.

•

Direction signs (for traffic).

•

Signs of approximately 1 square metre providing information about the petrol discounting scheme on the south and east elevation walls of the kiosk.

•

Corporate colours and logos of Safeway and Caltex on the petrol bowers and pump stations.

16 The subject site is zoned Business 1 (clause 34.04) under the Greater Geelong Planning Scheme which encourages intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.

17 A permit is also required for a petrol station on the site under clause 52.12 to vary the site area and site dimensions stipulated in the Service Station provisions.

18 No overlays apply to the site.

19 Car parking is to be provided to the satisfaction of the Responsible Authority under clause 52.06-1.

20 Advertising signs apply at clause 52.05-1 Category 1 Business Area. A permit is required to erect the proposed internally illuminated business identification signs and the free-standing price sign information board.

21 The following policies were highlighted as being relevant to the consideration of this matter:

The most relevant State Planning Policy Framework policy in relation to this matter is at Clause 17.01 Activity Centres where it states that activity centres should be planned to, amongst other things:

Minimise the effects of commercial development on the amenity of residential and parkland areas, for example as a result of traffic congestion, noise or overshadowing.

Local Planning Policy Framework including Municipal Strategic Statement [MSS]and Local Policies:

•

Mr Milner advised that Local and State planning policies require all new development proposals to achieve high quality urban design outcomes that have regard to their context, and to the character of the area. I agree with this summary.

•

At Clause 21.32, the structure plan for Ocean Grove recognises Shell Road as a 'main arterial road' and recognises Ocean Grove as its role as a service centre is expanding as population increases. This policy also makes the following relevant statements in relation to Shell Road:

The gently undulating topography north of Shell Road provides a pleasant and interesting landscape for urban development.

Support the development of land at the north east corner of Kingston Downs Drive and Shell Road, located in the Ocean Grove growth corridor, for a new full neighbourhood centre with up to 4,800m2 retail floor space.

•

The retail policies of the local planning policy framework were also highlighted by the Applicant, however, the matter before me is not the appropriateness of the retail centre or indeed the petrol plus service station but the matter of conditions. I agree that planning policy at the Local and State level supports the development of a retail centre in this location. The policy issues at Clause 21.20 and 21.30 that are relevant to the consideration of the conditions in question include:

Implement high standards of urban design in retail centres and developments.

In the CAA and the other urban areas of the municipality, including the coastal and rural townships, 'greening' of the public spaces is a topical issue. Improving and re-establishing urban street trees will reinforce view corridors and street grid patterns, provide shade for pedestrians, 'soften' hard areas such as car parks, improve amenity and bring environmental benefits. A street tree planting program could address this issue.

22 The decision guidelines at Clause 65 require consideration to be given to a number of factors including the Planning Scheme's policies, the purpose of the zone, overlay and particular provisions that apply, orderly planning and amenity.

23 Melbourne 2030 has been taken into account by the Tribunal. This is adopted Government policy which reinforces the State Planning Policy Framework and it si a policy to which the Tribunal must have regard.

24 The issue for consideration relates to a number of conditions on the planning permit. I will therefore deal with each condition and issue.

Urban Design and Landscaping issues reflected in conditions 1(a), 1(b), 1(c), 7(b) and 7(c)

1(a) Alterations to the design of the kiosk, canopy to better reflect the urban design of the recently developed shopping centre.

1(b) Colours of external cladding materials to be used in the construction of the kiosk and canopy.

1(c) Materials and colours of paved areas within the development.

7(b) A significant visual screen to the Shell Road frontage of the site immediately abutting the service station.

7(c) Additional screen planting on the southern separator island within Shell Road to provide an additional visual buffer to the service station site.

25 How the proposal sits within the shopping centre development was raised as a concern by Council and objectors. In addressing this issue, I will review conditions 1(a), 1(b), 1(c) and 7(b) and 7(c) together as they all relate to the visual impact of the proposal on the character of the centre and the residential properties opposite the site.

26 Ms Davey submitted that Council imposed conditions 1(a), (b), (c) and 7(b) and (c) in an attempt to have the design of the proposal better reflect the characteristics of the neighbouring Ocean Grove Marketplace and reduce the impact on the residential properties on the southern side of Shell Road. Ms Davey submitted that the theme of the Ocean Grove Marketplace is characterised by the wood facings and fences, wooden bollards and neutral external colours which reflect the relaxed coastal environment. As it is proposed Ms Davey described the current design and particularly the kiosk as looking like a 'toilet block' particularly when viewed from the Shell Road perspective.

27 Mr Peake however disputed the issue that the shopping centre had a dominant design theme. He submitted that the shopping centre does not have any unique design characteristics that needed to be reflected in the petrol station. The proposed service station and associated structures are of a colour that would respond to the neutral tones of the shopping centre.

28 The proposed design of the kiosk is 7 metres in width and 3.4 metres in height and painted green and white. There is nothing interesting about the structure.

29 I disagree with Mr Peake's assessment of the 'theme or lack of character' of the shopping centre. On my site visit, I noticed that whilst the layout of the shopping centre is generic, the combination of the use of timber and the landscaping does create a 'coastal character' that should in some way be responded to. I am aware that the kiosk structure is small and is generic in many shopping centres, however, in this case, the following factors persuade me to require a change:

•

It is located on the Shell Road frontage and will be highly visible to the road.

•

It is located directly opposite residential properties.

•

There is little landscaping between the shopping centre and the residential properties to reduce the visibility of the service station.

•

There is nothing interesting about the kiosk structure.

•

I agree with Mr Milner's assessment of policy where he stated that all new development proposals to achieve high quality urban design outcomes that have regard to their context, and to the character of the area.

30 I have discussed the character of the shopping centre, but the proposal should also be considered in its locality context.

31 The residents Mr & Mrs Hall and Mr Cook all live opposite the shopping centre. Photographs were presented which detail the character of the area before the construction of the shopping centre and after. A line of significant trees that formed a significant visual barrier between the sides of the road have since been removed. Therefore the relationship of the residential properties to the shopping centre has been quite dramatically altered. Whilst it is common to have a Business 1 zone opposite a residential zone and residential dwellings, in this case, the impact has been increased due to the loss of the significant visual barrier being the mature trees. The context of the location of the structure should not only be considered in terms of the visibility to Shell Road for motorists but the visibility to the residential properties opposite. I am persuaded by Council that the kiosk structure is an uninspiring structure that should be screened or at least softened to the residential properties.

32 I am aware of the desire for Safeway/Caltex to maintain its corporate colours and structures. At the hearing, there was some discussion about the inclusion of a timber slatted fence to the south elevation of the kiosk structure to reduce its visibility primarily to the residents opposite on Shell Road. I am persuaded by the Council and the residents that the shopping centre does have a coastal character but that this is to be balanced against the desire of a corporate image. I do not believe that requiring a change to the corporate colours will make the impact the Council desires. The issue in my mind is screening or softening the structure with an appropriate timber slatted fence to the south elevation which reduces the visibility of the kiosk to the residents and reinforces the timber coastal theme of the centre.

33 Conditions 7(b) and 7(c) require additional screen planting to create a significant visual screen and on the southern separator island within the Shell Road to provide an additional visual buffer. At the commencement of the hearing, Mr Peake presented a landscaping plan prepared by John Patrick Landscape Architects. Mr Peake commented that the purpose of the landscaping and plan prepared is not to hide the commercial property but to soften its presentation to the public realm. Council had an opportunity prior to the hearing to form a view of the plan and noted its support subject to changes regarding the species proposed and deletion of trees due to sightline protection. Mr and Mrs Hall and Mr Cook had an opportunity to review the plan at the hearing and noted their support for landscaping.

34 When I enquired as to who would plant and maintain the landscaping, Mr Peake advised that Woolworth's would provide the landscaping but where it is a Council reserve, then the ongoing maintenance is a Council responsibility. I agree with Mr Cook when he stated that landscaping is vital to the area. Landscaping of the southern separator island will create a visual barrier between the service station and the residential properties and reduce the impact to these houses. I further accept that Woolworth's should provide the landscaping but beyond the point that it is established, the ongoing maintenance to landscaping within the Council reserve, is a Council responsibility. In fact the type of plants and trees to be provided need to be 'water resistant' and to the satisfaction of the Responsible Authority. I agree that a balance needs to be struck to ensure that landscaping is provided and maintained initially until established and then ongoing maintenance should be provided by the Council. In my opinion, a two year period should be provided by the Council. In my option, a two year period is an appropriate length of time to establish the landscaping.

35 Based on the above, I will therefore require the following changes to conditions. Deletion of conditions 1(a), 1(b), 1(c), but the following condition to be added:

A new Condition 1(a) to read:

The inclusion of a timber slatted fence to at least 3 metres in height to be placed on the south elevation of the kiosk in line with the staff car park for the length of the kiosk (approximately 8 metres) to the satisfaction of the Responsible Authority.

Conditions 7(b) and 7 (c) are to be amended as follows

(b) A significant visual screen to the Shell Road frontage of the site immediately abutting the service station generally in accordance with the landscape plan submitted to the Tribunal prepared by John Patrick Landscape Design Job No. 05-029 but subject to the changes required by the Responsible Authority and to the satisfaction of the Responsible Authority.

(c) Additional screen planting on the southern separator island within Shell Road to provide an additional visual buffer to the service station site generally in accordance with the landscape plan submitted to the Tribunal prepared by John Patrick Landscape Design Job No. 05-029 but subject to the changes required by the Responsible Authority and to the satisfaction of the Responsible Authority.

For landscaping on the southern separator island or on any Council owned land, the Applicant is to maintain the landscaping until it has been established to the satisfaction of the Responsible Authority, including any dead, diseased or damaged plants that are to be replaced but not for longer than a period of two years.

36 It was clear from the commencement of the hearing that Council's issue with the signage related to only one sign being 6 metres in height and 2.17 metres in width. The other signs on site are smaller directional type signs or smaller business name signs. Ms Davey advised that there is already an existing shopping centre sign measuring 9 metres in height and 3.9 metres in width. This sign advertises the tenants of the shopping centre and it was suggested by Ms Davey and the objectors that it could also accommodated the Petrol Plus signage. The residents questioned the need for such signage as the petrol plus service station will be known to the 'area's residents and does not require signage to attract trade.

37 Mr Peake submitted that the signage proposed is consistent with petrol stations and having regard to the sites location being on a main road it is reasonable. I am persuaded by Mr Peake that the sign is appropriate. Whilst the site is opposite a residential area, it is also to be remembered that it is in a Business 1 zone. The purpose of the applicable signage control at Clause 52.06 Category 1 is:

To provide for identification and promotion signs and signs that add vitality and colour to business areas.

38 Driving to the site, I also noted other shopping centres with both shopping centre signs and petrol plus signs advertising 'the price of petrol' and I did not consider the two signs to be visually cluttered. I do not believe that two signs on the proposed frontage is excessive visual clutter.

39 I will direct that Condition 1(e) be deleted.

2. Prior to the construction activity commencing, a wastewater management plan must be submitted for approval to the Council. This plan should cover measures to collect and remove or recycle waste petroleum products, minimise sediment runoff, control litter and manage sewerage, sullage and car wash waste. It should also incorporate the following principles and elements:

a. No wastewater should be discharged off site or disposed of to land without appropriate treatment.

b. All wastewater generated at the premises must be treated and disposed in accordance with the Australian Institute of Petroleum Code of Practice "The Control of Water Effluents from Service Stations" (AIP CPI, latest edition), subject to condition 5(a) above.

c. An emergency response plan which will clearly articulate the procedures that will be employed when there is a major fuel spill. It will focus on preventing the discharge of hydrocarbons to the stormwater drainage system, in particular, the vegetated bioretention systems being built along the eastern boundary of the supermarket development.

41 Mr Peake stated that Council had an erroneous assumption that the service station will include a car wash and vehicle servicing facilities. At the hearing, it was acknowledged by all parties that the site did not include a car wash or vehicle servicing facilities, therefore the words 'car wash' should be deleted from paragraph one of condition 2.

42 Mr Peake further stated that conditions 2(a) and 2(b) are unnecessary as other than for an emergency situation where there is a petrol spill, the wastewater generated will be stormwater, and no special conditions are required. I will require the retention of conditions 2(a) and 2(b) as Mr Milner states in his evidence that:

Unlike car washes, petrol stations themselves generate minimal waste water, usually associated with appurtenances associated with the kiosk building, and urban runoff. They are normally required to adhere to EPA and Dangerous Goods requirements in addition to mandatory industry legislation. Triple interceptor pits are normally installed to prevent fuel runoff from entering the sewer system. Conditions 2(a) and (b) are unnecessary in my opinion. (My underlining page 23).

43 I have concerns with the statement of evidence that they are normally required to adhere to EPA and Dangerous Goods regulations. I was not convinced by the applicant's case that the conditions were unnecessary or in any way impacted upon the operation of the proposed use. However, I will add the words "to the satisfaction of the Responsible Authority" in Condition 2 which allows for a plan to be submitted addressing what is required in the condition and it also allows for any dispute regarding the content of the document to be resolved if necessary.

44 I will therefore require that the condition adds the words 'to the satisfaction of the Responsible Authority" in the second sentence and delete the words 'car wash' in the first paragraph.

12 The hours of operation allowed for the petrol station are as follows: Monday to Sunday 7am-10pm.

45 At the commencement of the hearing, Mr Peake presented a draft condition 12 for consideration. It read:

The use hereby permitted may only operate between the hours of 6am and 12midnight each day, unless the supermarket is open to the public outside these hours, in which case the use may operate at the same times as the supermarket.

46 Mr Peake stated that the test in considering hours of operation is whether there is a need to restrict the hours of operation to protect the reasonable amenity expectations of nearby residents. I consider that this is a reasonable test to apply. Mr Peake further highlighted what he believed were key factors to take into consideration:

•

The supermarket and specialty shops have no restriction on their hours.

•

Shell Road is a main arterial road carrying relatively high levels of traffic.

•

The level of patronage at night will be comparatively low.

•

There are no fuel deliveries or garbage pickups during the night period.

•

Modern service stations use controlled and baffled lighting and silent underground fuel pumps.

•

The convenience of the public is enhanced by having extended trading hours for fuel purchases.

47 Ms Davey on behalf of the Council stated that restricted hours are necessary and that the modest size of Ocean Grove does not warrant a 24 hour service station. As the Burton Acoustic report details, traffic is particularly low between the hours of midnight and 6am.

48 The residents raised concerns regarding 24 hour trading in terms of amenity impacts such as noise and headlight glare into properties and questioned the need for unrestricted trading.

49 Mr Burton provided acoustic evidence which concluded that having regard to the prevailing background noise and the expected level of patronage after 10pm and the location of the site relative to residential properties, 24 hour operation will not cause any disturbance to nearby residences.

50 Whilst I may accept Mr Burton's conclusions that with the expected level of patronage that the noise level is not expected to disturb residential properties, I have concerns that over the future years as Ocean Grove grows in population, the level of patronage may well increase. As it was highlighted by Mr Peake, Clause 21.30 of the Planning Scheme recognises that the role of Ocean Grove is expanding as its population increases. It may well increase seasonally and have a greater impact on the adjoining residential properties.

51 The subject site is located in a Business 1 zone and I accept Mr Peake's comment that businesses are not usually restricted in Business 1 zones. However, this Business zone does share its boundaries with residential zones, where it may be necessary to restrict hours to minimise any impact on surrounding residential properties. Clause 17.02 of the Greater Geelong Planning Scheme states that it is a policy of Activity Centres to:

Minimise the effects of commercial development on the amenity of residential and parkland areas, for example as a result of traffic congestion, noise or overshadowing.

52 The proposed service station adjoins and is opposite residential properties. The service station is also located closer to the frontage and adjoining residential properties than the supermarket which has 24 hour trading. At present there is no visual barrier between the north and south side of Shell Road despite the different land uses. The site also directly adjoins residential properties to the east. The amenity of the residential properties would be unreasonably impacted upon with 24 hour trading in this location. I am not persuaded by the Applicant that the use should have unrestricted hours of trading.

53 I will direct that condition 12 be amended to read:

The use hereby permitted may only operate between the hours of 6am and 12midnight each day.

54 This matter was not about the appropriateness of the use as it had already been decided and a permit issued, but concerned itself with conditions to modify the design of the structures and to govern the operation of the use. My site visit confirmed that despite the arguments raised by the Applicant, the shopping centre does have a dominant theme and character. The use of timber throughout the centre including boundary timber bollards and the use of native grasses contributed to the relaxed coastal theme. The impact of the proposed kiosk is to be modified to soften its impact to the character of the site and the surrounding residential properties.

55 I accept the argument of the residents that their neighbourhood has been altered due to the existence of the shopping centre, but the change occurred as part of a previous planning process. In terms of landscaping however, the impact of the proposed service station can again be softened by landscaping. The landscaping is not to be the remedy for a previous outcome that they may not believe to be successful (i.e. the deletion of the mature trees on the service road median) but is to soften the impact of the proposal on the streetscape and the residential properties.

56 The hours of operation imposed recognise that whilst the site is in a Business 1 zone, it is also adjoined by residential zones and properties and any impact should be minimised.

57 For the reasons that I have set out above, I will order that the decision of the Responsible Authority is varied and that a permit is issued subject to modified conditions.