"The plan must include a notation to the effect that the relocatable unit shown on the relocatable unit shown on the plan will be removed in accordance with the Section 173 agreement".

"Prior to the commencement of the use of the dwelling allowed by this permit, the permit holder will carry out landscaping of the southern boundary (west of the western most vehicle crossover) on the land to the satisfaction of the Responsible Authority".

"Within 60 days of the date of this Permit the owner will enter into an agreement pursuant to Section 173 of the Planning and Environment Act 1987.

The Section 173 agreement must provide that the relocatable unit together with the associated crossover situated towards the Chaudy Road frontage of the land and subject to Permit No. YR2001/959 must be removed by the earlier of either:

a)

within 3 months of the commencement of use of the dwelling allowed by this permit; or

b)

within 3 months of the expiry of Permit YR2001/959

provided however the requirement for removal of the relocatable unit shall not apply if new planning permission has been obtained to use the relocatable unit for a dependent persons unit or some other lawful use.

The agreement will provide that it will come to an end once the relocatable unit is removed from the land.

The agreement must be registered on the title to the land and the owners agree to pay on demand to the council the Council's reasonable costs and expenses (including any legal fees incurred on a solicitor-client basis) of and incidental to the preparation, execution and registration of this Agreement.

2

Leave is granted for the Responsible Authority to withdraw its Application for Enforcement Order, VCAT Ref. No. P1380/2004.

3

There will be no orders as to costs.

1

The 2nd bullet point of condition 1 and condition no. 10 in planning permit no. YR2003/1426 issued 16 December 2003 must be deleted and substituted with the following new condition:

The crossover associated with the relocatable unit situated towards the Chaundy Road frontage of the land and the subject of Permit No. YR2001/959 must be removed by the earlier of either:

c)

within 3 months of the commencement of use of the dwelling allowed by this permit; or

d)

within 3 months of the expiry of Permit YR2001/959

This requirement for removal of the associated crossover shall not apply if new planning permission has been obtained to use the relocatable unit for a dependent persons unit or some other lawful use. In the event that no new planning permission has been obtained to use the relocatable unit for a dependent persons unit or some other lawful use, the associated (second) crossover situated towards the Chaundy Road frontage of the land (eastern access point) and subject to Permit No. YR2001/959 must be removed, reinstated and planted out with vegetation.

Ms Tamara Brezzi, Solicitor from Deacons appeared for the Applicant for Review

Ms Rita Hickman appeared for objectors Hickman and Laukert.

1

This was an application under section 80 the Planning and Environment Act 1987 for review of conditions in the responsible authority's decision to grant a permit (application No. YR2003/1426) for the land at 4 Chaundy Road, Belgrave.

2

This matter was listed for hearing on 19 November 2004.

3

This is a limited review concerning the deletion/removal of a second driveway to the subject land, opened up in order to enable a relocatable dwelling to be placed on the land.

4

The 2nd dot point of condition 1 in planning permit No. YR2003/1426 reads:

Prior to the commencement of the permitted use/development an amended plan/s must be submitted for approval to the satisfaction of the Responsible Authority showing:

•

Removal and reinstatement (planted out with vegetation) of the eastern access point (second crossover).

5

Condition no. 10 in planning permit No. YR2003/1426 reads:

Prior to the occupation of the proposed development, a single vehicle crossing must be constructed in Chaundy Road to serve the development to the satisfaction of the Responsible Authority.

6

The review is limited, given the consent order reached by the parties in respect of the balance of contested matters.

7

The Responsible Authority explained they were prepared to let the applicant have the second driveway because:

i

he is revegetating the southern boundary, to better shield the relocatable unit;

ii

his dwelling abuts, for a large extent of its southern boundary, a driveway to Johannes Laukert;

iii

it is not uncommon for residents to get approval for second crossover on a frontage of 38.14 metres;

iv

under the Wildlife Management Overlay, it is policy to desire easy and convenient access to properties for fire fighting purposes. The second driveway allows a circular driveway layout.

8

Ms Brezzi for the applicant explained:

i

the applicant had a permit (now expired) for a permanent dwelling, but his builder went bankrupt. The applicant was affected by the HIH Insurance Company's collapse, as well as by his wife's illness. That is why this is a new permit application for the permanent dwelling;

ii

contrary to the objectors' belief that the driveway is illegal, there is a Permit No. YR-2001/959 issued 30 July 2001 for this relocatable unit, which has endorsed plans attached allowing this second driveway, by way of an amendment to the originally endorsed plans. This amendment shows up on Sheet 5 of 5 dated 1 November 2001.

iii

the relocatable unit sits quite low on the land. The applicant is applying for an extension of this relocatable unit permit, which expired on 30 July 2004.

iv

Two water tanks sit on the east side of relocatable unit so the second crossover allows compliance with the CFA conditions that water be available. The other (original) driveway has steeper access.

9

This second driveway, the eastern access point, was constructed to allow the entry of the relocatable dwelling unit. I think its continuance should follow the fate of its principal. There is to be a separate hearing on the fate of that relocatable unit, so I have amended the conditions to allow for its retention in the event the relocatable units is legitimised, but to require its removal in the event it is required to be removed from the land because it cannot obtain planning permission.