The decision of the Responsible Authority is varied. In permit application 2006/0413 a permit is granted and directed to be issued for the land at Site 237 New Summit Road, Mount Buller. The permit allows buildings and works for the construction of a seven level accommodation building (including variation to Design and Development Overlay Schedule 1 requirements) incorporating a shop, licensed bar on level 00 adjacent to reception, earthworks, reduction of car parking requirements, waiver of bicycle requirements, the removal of vegetation and associated works in accordance with the endorsed plans in accordance with the endorsed plans and subject to the conditions contained in the Notice of Decision to Grant a Permit 2006/0413 issued by the Responsible Authority on 14 November 2006 modified by:

1. The replacement of the fourth sentence of condition 1 with the following sentence:

The plans must be generally in accordance with the plans by Ellenberg Fraser (Drawings VC004 Rev A, VC005 Rev A, VC006 Rev A, VC100 Rev A, VC200 Rev A, VC201 Rev A, VC202 Rev A, VC203 Rev A, VC204 Rev A, VC205 Rev A, VC206 Rev A, VC400 Rev A, VC401 Rev A, VC402 Rev A, VC403 Rev A, VC503 Rev A, VC504 Rev A, VC505 Rev A, VC506 Rev A, VC507 Rev A, VC508 Rev A, VC509 Rev A, VC510 Rev A,) but modified to show:

1. The deletion of conditions 1(a), 1(b), 1(c), 1(e) and 1(f).
2. The addition of the following parts to condition 1:

(?) The overall height of the building being reduced by 1 metre.

(?) The relocation of decks, spas and other building elements to allow for the retention of snow gums, on the site and close to the site, in accordance with appropriate arboricultural requirements, and to accommodate the reduction in the height of the building required by the conditions of this permit.

(?) Specific details and samples of all exterior colours finishes and materials including the roof, and in particular a schedule of colours for the window "chutes" on the northern elevation showing a more subtle transition to the brighter pink and yellow orange hues and the very limited use of these brighter hues within this façade.

? Except with the consent of the responsible authority outdoor spas, hot tubs and saunas located between the building and Abominable Way must not be used before 9.00am or after 11.00pm on any day.

? Prior to the commencement of any excavation, (other than excavation required to comply with this condition'), a specialist Geotechnical Engineer or Engineering Geologist with a degree as defined in clause 3.0 of Schedule 1 to the Environmental Management Overlay [Geotechnical Engineer] and who is a Registered Practitioner registered by the Building Control Commission with expertise in slope stability, must undertake a detailed geotechnical investigation of the land and prepare a report to the satisfaction of the Responsible Authority detailing the measures to be undertaken to prevent any increase in risk of landslip or land instability as a consequence of the excavation for and construction of the permitted development. The measures should be generally in accordance with the matters raised and plans attached to the joint report prepared by Mr Robert Day, Coffey GeoSciences and Mr Tim Holt. AS James Pty Ltd 16 April 2007. When approved, the report will be endorsed and then form part of the permit.

? The geotechnical investigation and report must include and deal with (although not limited to) the following:

• a slope stability assessment in accordance with the Australian Geomechanics Society (AGS) references called "Landslip Risk Management Concepts & Guidelines March 2000" and "Geotechnical Risks Associated with Hillside Developments May 2002" or updated by the AGS and Australian Standard AS 1726;
• the presence of any fill on the land;
• the site classification in accordance with Australian Standard AS 2870;
• the foundation design parameters;
• the impact, if any, of the excavation and construction on the stability of the site and surrounding lands;
• the treatment and drainage of stormwater, groundwater and surface flows and the impact, if any, to slope stability;
• the impact, if any, of leakage from underground services;
• the appropriate foundation system;
• the appropriate ground retention system during and after construction taking into account potential time frames and having regard to the potential exposure to a variety of extreme weather conditions;
• the risk to Abominable Way and to the properties to the south adjacent to the site;
• a survey of levels on Abominable Way and the adjacent properties to the south, including permanent markers, as a basis for post construction monitoring.

? The Applicant must pay all reasonable costs incurred by the Responsible Authority associated with obtaining a peer review of the geotechnical investigation and report and carry out all recommendations in the peer report to the satisfaction of the Responsible Authority.

? The design and construction of retaining walls and earthworks must be undertaken by an appropriately qualified structural and/or geotechnical practitioner under the direct supervision of a Geotechnical Engineer and to the satisfaction of the Responsible Authority to ensure that the development does not destabilise any public assets or adjoining property, soils or structures.

? Upon completion of the excavation works and retention system(s), and prior to any further construction, there must be undertaken a survey of the site and Abominable Way and properties to the south adjacent to the site determining what, if any, land movements has occurred since the survey undertaken pursuant to condition 3(k) and making recommendations as to what remedied works (if any) should be undertaken, all to the satisfaction of the Responsible Authority. If there are any remedial measures recommended those measures must be undertaken forthwith to the satisfaction of the Responsible Authority.

? The Head Lessee of the site must cause to be undertaken an inspection and survey of the site and of Abominable Way and of the adjacent properties to the south by a Geotechnical Engineer.

? Such inspection must be carried out on the 12 month anniversary of the issue of an Occupancy Permit or within 21 days before or after that date.

? An inspection report of the Geotechnical Engineer containing observations and any recommendations for required actions is to be submitted to the Responsible Authority within 21 days of the carrying out of the inspections and the required actions implemented within a reasonable period to the satisfaction of the Responsible Authority.

? If within five years of the issue of an Occupancy Permit there is an earth movement considered to be significant in the opinion of the Geotechnical Engineer in ground conditions on the site, on Abominable Way or any adjacent land caused by the carrying out of the development and associated earthworks the Head Lessee of the site must within a reasonable period have a report prepared by a the Geotechnical Engineer with recommendations to respond to the earth movement to the satisfaction of the Responsible Authority.

? Any recommended response in any report of the Geotechnical Engineer which identifies earth movement that has been caused by the development permitted must be implemented by the Head Lessee within a reasonable period and to the satisfaction of the Responsible Authority.

? The Head Lessee and the Geotechnical Engineer must authorise the Responsible Authority to make public any report produced in accordance with the requirements of this permit and authorise the Responsible Authority to provide copies to persons with an interest in any adjacent site.

Ms Susan Brennan, barrister instructed by Deacons. Witnesses:[1]

Mr Chris Townshend, barrister, instructed by Clayton Utz.

1. These applications relate to what is described as an apartment hotel at

Site 237, New Summit Road, Mount Buller, a site within the Commercial Area of Mount Buller Village. 2. There are two applications before the Tribunal: 1. Application P2951/2006 is brought by objectors against the decision to grant a permit, and; 2. Application P2948/2006 is brought by the permit applicant against conditions[2]. 3. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

1. The subject land is an irregular lot recently created as a new leasehold site by the Mt Buller and Mount Stirling Alpine Resort Management Board.
2. Mt Buller Village has largely been developed for seasonal holiday accommodation and associated commercial facilities and services. The physical layout of the Mt Buller Village is described at Clause 21.05-1 of the Alpine Resorts Planning Scheme as

A distinctive 'hour glass' shape formed by two residential areas at either end of a narrow central commercial area. The ski fields at the western end and steep topography at the eastern end effectively contain the village.

1. Commercial sites on Mt Buller are generally larger and are developed more intensively than residential sites.
2. The land is within the defined Commercial Area of the Village. Sites between the subject site and the central hub of Mt Buller Village (to the east and fronting Athletes Walk) are large commercial sites that contain larger scale developments compared to the scale of development occurring in the Residential Area to the west of the land. These premises are highly visible from the approach to the Village on the main access road.
3. The land has a frontage to both New Summit Road and Abominable Way[3] and an area of approximately 1863 square metres. The site slopes steeply from Abom Way down to the New Summit Road with an overall fall of approximately 14 metres. The lot is largely cleared of trees as a consequence of its previous use as part of the old School Run ski trail. However, there are three snow gums located on the land, one adjacent to a reserve[4] to the west and one in the south east corner of the land adjacent to Abom Way. To the east is an open at grade car park at site 229 associated with the Chalet apartments. Down-slope and north of New Summit Road is land proposed to be used as a toboggan run.
4. Elevated above the site and to the south across Abom Way moving from west to east, are sites 106B and 106D, 106C, l07A and 108A. These sites accommodate the following buildings:
   • 106B and 106D: comprises 3 individual dwellings, three storey Stirling lodge at the western end (106B), three storey Razorback lodge on the eastern portion and Buffalo lodge behind (and above) Razorback Lodge (106D). These lodges are opposite the western extremity of the subject site.
   • 106C contains the two to five storey Abom apartments and restaurant complex which is centrally located opposite the site but set back up the slope.
   • 107A contains the five storey Alto Villa apartments which are opposite at the eastern end of the subject site
   • 108A comprises the four storey Valley View apartments which are diagonally opposite the site to the east. Further east are the Chalet apartments on site 206.

1. The proposal involves the construction of a seven level building for accommodation purposes and associated facilities including a shop and licensed bar area.
2. The building will be oriented parallel to New Summit Road and the lot frontage with its principal orientation to the north east across New Summit Road toward the distant Alpine views. The building is to be constructed over 6 levels with a seventh mezzanine level incorporated into the upper most level. At the highest point above natural ground level the building will be 5 levels (including the mezzanine level) with no part of the building being more than 15 metres above the natural ground level.
3. The main pedestrian entry is located centrally on the frontage to New Summit Road. A car park entry providing access to the single level basement car park for 30 vehicles is located at the western end of New Summit Road frontage. A bus zone/drop off zone is proposed adjacent to the car park entry.
4. The complex will comprise a total of 38, 1, 2 and 3 bedroom apartments over five levels serviced by two lift cores. A level by level description is included in Attachment 1.
5. It is intended that each apartment will be individually owned but leased back to a central management group. We were advised that owners will be entitled to a number of weeks accommodation per year but would otherwise receive a return for the letting of their apartment.
6. The building is an example of contemporary architecture. The main façade to New Summit Road utilises:
   • Local Mt Buller weathered granite as a base.
   • Honed basalt tile wall surfaces with extruded "chutes" framing window/balcony openings with deep reveals constructed with stainless steel and coloured glass for the middle levels of the building, and;
   • Facetted glazing for the upper levels raking back from the façade below.

The side elevations of the building will incorporate selected timber cladding and granite stonework. The rear elevation of the building features a basalt aggregate finish with galvanised steel fashioned in a "V" pattern supporting the overhanging metal deck roof designed to direct snow shed to the south side of the building.

1. The proposal will involve substantial excavation and the utilisation various geotechnical engineering techniques.

1. The subject land falls within or is affected by, the Comprehensive Development Zone Schedule 1 (CDZ1), the Erosion Management Overlay Schedule 1 (EM01) and the Design and Development Overlay,

1. Ms Heggen reflected an important underlying basis of the permit applicant's case in expressing her opinion of that the proposal is at one with the strategic planning policy framework which encourages the intensive development of land within the Mount Buller village, and in particular within the commercial area of the village, to facilitate the establishment of an all year round, commercially oriented, alpine resort.
2. Representatives of the objectors rejected this approach in a sense likening it to that of Danny Denuto in The Castle when he advocated that the court have regard to "the vibe" of the constitution. By contrast Mr Townshend embarked on an almost forensic analysis of the planning scheme to support an argument that the overwhelming thrust of the policy framework was, to ensure that development respects village character by among other things limiting building height and to respect established amenity, including the enjoyment of views.
3. If Danny Denuto, was to appear before the Planning Environment List of VCAT, and argue that in the circumstances of a particular case we should ascertain "the vibe" of the planning policy framework in order to reach a decision, then he would be advocating an approach which has been supported by this Tribunal in the past[5]. We think Ms Heggen's approach is to be preferred, over one which seeks to analyse and emphasise particular aspects of the planning policy framework, without due regard to the overall intentions of the planning policy framework.
4. The subject land is a large vacant site within the commercial area of the Mount Buller village. It is a site in respect of which it can be reasonably said that the planning policy framework encourages reasonably intensive development which promotes the establishment of an all year round commercially oriented alpine resort. Such development must be responsive to the environment, the landscape and built form character of the village, and established amenity, but these considerations are to be understood by being seen through the prism of the overarching strategy to encourage more intensive development.
5. In this case we believe that the proposal to establish an "apartment hotel" on this large commercial site is quite strongly supported by the planning policy framework. The question to be resolved in this case is whether or not the proposal achieves this strategic outcome while being sufficiently responsive to the environmental considerations, the landscape considerations, the built form considerations and the amenity considerations relevant under the planning scheme provisions.

1. The planning policy framework encourages development which sits comfortably within the alpine landscape, and positively contributes to the village character. To achieve this buildings are encouraged to be stepped, to be articulated, and to be fragmented. It is argued by objectors that the proposed building is an unarticulated mass which is neither stepped nor fragmented.
2. When the planning policy framework talks about stepping, it is essentially a device by which buildings responded to topography. A referable example is the way in which Alto villas step down the slope of its site. We think that the criticisms of the proposed building in respect of stepping are misconceived, and fail to have proper regard to the particular characteristics of the subject land.
3. The subject land fronts onto New Summit Road which falls approximately one metre to the east along the length of the frontage. The land is considerably wider than it is deep. The land has a substantial fall from its rear at Abom Way, to its frontage. The contours describing the topography of the land, and its fall from rear to front are essentially parallel to the frontage of the site.
4. The building is in two parts. The front wing[6], is a narrow rectangular element addressing the frontage of the site. The rear wing is a smaller building element which adjoins the main wing and its western end, taking advantage of the greater depth of the site at this end. The policy requires the stepping of buildings as a device to respond to topography. Therefore, the criticism that the main wing of the proposed building does not step along its long axis, is misconceived. There is no need for the building to step in this direction to respond to the site's topography. The main wing, on its short axis has a quite narrow depth, stepping in this direction is of doubtful benefit and is of doubtful utility. There is a stepped relationship between the main wing, and the rear wing.
5. In part the argument that the main wing of the building should step from west to east relates to the vertical alignment of Abom Way. Abom Way falls around six metres from west to east across along its frontage to the site. Much of this occurs toward the eastern end of the site. The fall in Abom way is not a consequence of any dramatic change in the topography of the site, which requires some stepping of the building[7]. The main public view of the proposed building will be from the north and east, it is most appropriate that the form of the building conforms to the topography as it is understood from these viewpoints.
6. The criticism that the proposed building is unarticulated is also unfounded. In an architectural sense the building is divided into a base, a middle and a top. These elements of the building are articulated by the use of building setbacks, the varied use of materials and architectural ornamentation. In particular the upper levels of the building are designed using a raked and faceted glass facade to make the upper levels recede from view when viewed from the north and east.
7. If fragmentation is to be regarded as the articulation of a building by its separation into parts, then in respect of the main public views of the building, views to the north and east, then the building is not fragmented. But as we have already observed, the building is highly articulated, an outcome which has been achieved without fragmentation from this perspective.
8. The montages supplied by the permit applicant include some aerial montages in which the building is seen against the backdrop of this part of the village. In particular, the proposed buildings relationship to other buildings within the commercial area can be readily appreciated[8].
9. In our opinion the architecture of the building is of high standard. The building responds well to the topography of the land. The building will sit comfortably within the backdrop of buildings that constitute this part of the village, particularly those within the commercial area.

1. The main wing of the building extends over a total of seven levels from the basement car park to the mezzanine floor level. The relevant DDO establishes a discretionary height requirement that the maximum height of any part of a building is four storeys, or 15 metres above natural ground level, whichever is the lesser height.
2. It was Ms Von Hartel's argument that the building would be understood as a six or even seven level building when viewed from the public realm. Mr Pitt argued that the mezzanine floor level was a non complying fifth level in the building[9]. Mr May agreed with Mr Pitt but observed that the building could be made to comply by re-jigging the arrangement of floors and voids at the mezzanine floor level. Ms Heggen agreed that there was a minor non compliance with the discretionary four storey requirement at the building's western end.
3. In part this debate is of particular importance because it is argued that it is inappropriate for the building to be allowed to exceed a strongly expressed height guideline in a policy context which promotes the sharing of views when it is reasonable and practicable to do so.
4. Before turning to these arguments it is worthwhile to briefly consider the effect of the height guidelines. Fifteen metres is equivalent to a five storey building. The guideline obviously envisages that on a sloping site the down slope edge of a four storey structure may be elevated above ground level by about one storey or 3 metres. Moreover, the reference to natural ground level, without any locational limitation, allows for the stepping of buildings. Therefore on a steeply sloping site, say a site which rises 3 metres in 5 metres, the building could step a level at approximately 5 metre intervals.
5. In relation to the apparent height of the building, it is possible that a person observing the building from a public realm might recognise that the building is a six level building above a basement car park. However, we disagree with Ms Von Hartel's assessment that this is an adverse outcome on two basis, ie:
   • The height control, as it is expressed in the DDO, allows for buildings which step up in height, and therefore allows for buildings which will appear to be higher than four storeys;
   • We think that the architecture of the building manages the apparent height of the building in a very subtle way with the base and middle levels of the building which total four storeys, being the dominant visual element.
6. The down slope edge of the mezzanine floor level, overlaps the level 01 floor where it is at or above natural ground level to a some degree west of gridline D. In this area the building is a five storey building above natural ground level. The building has been designed to be less than 15 metres above natural ground level at any point. It is argued on behalf of the permit applicants that:
   1. The extent to which the four storeys above natural ground level limit is exceeded is minor, and;
   2. The building otherwise complies with the overall 15 metre height limit, and;

that therefore the non compliance is reasonable and should be disregarded.

1. We think that the permit applicant's arguments in this regard are acceptable in an urban design context. In a general sense it is our opinion that the proposed building will sit comfortably within the topography, the landscape and the built form context of the Mount Buller village. Nevertheless, there are other amenity considerations, in particular views, which are relevant to the question of whether or not the overall height of the building is acceptable. These issues are dealt with below.

1. In our view there are three significant amenity issues argued before us, they are the impact of the proposed development on views the outdoor spas and public access to the proposed building via Abom Way. Of these issues, views was by far the most important issue.

1. We had an opportunity to gain an appreciation of the views available from all of the dwellings of objectors who are now parties in these proceedings. Moreover, as the hearing progressed, various parties and witnesses analysed the impact of the proposal on views, including for example, the montages prepared by Orbit Solutions forming part of Ms Hansen's evidence. From the living areas of Razorback, and the upper level apartments in Alto Villas, it is the downward views to the foreground's slopes and ski fields which are to varying degrees affected by the proposed building. For the lower level apartments in Alto Villas views across the site will be effectively obliterated by the proposed building. In particular, views presently enjoyed from the Macciolli dwelling will be seriously effected, because the sole outlook from this apartment tends to be across the subject land.
2. In addition to the more generally expressed policies in respect of the protection of established amenity, there is a specific design objective under the DDO which seeks to protect view corridors between buildings and to provide opportunities for view sharing where reasonable and practicable.
3. In relation to the lower level apartments in Alto Villas we do not think that it can be reasonably concluded that views across the subject land are protected by the planning policy framework. The subject land is a large vacant site in the commercial area of Mount Bulla village. We have already observed that the planning policy framework encourages the intensive development of such sites. Indeed, the Alto Villas building is itself an example of the intensive development of a site within the commercial area of the village. The protection of views from the lower level dwellings in Alto Villas would severely, and inappropriately, compromise the potential development of the subject land.
4. Views from the upper level apartments in Alto Villas and from the living areas of razorback are more problematic, because here the issue is the degree to which the proposed building interferes with existing views, in a context where the accommodation of views would reduce but not fatally compromise the potential development of the subject land.
5. Mr Pitt proposed that the mezzanine level be deleted, the roof form be changed, and the building be set further into the ground. Mr Gobbo proposed that the building being stepped in height from west to east, with the height of the building being reduced by two levels towards its eastern edge.
6. In support of these changes, it was argued that in the context of a mountain resort, unimpeded views are such an important aspect of amenity that the impact of development on views in such an environment should be given greater weight than would be the case in an urban environment where planning policy similarly encouraged more intensive development[10]. It was submitted that the policy statements in support of a sharing of views supported this contention.
7. We agree that in the context of a mountain resort views are a more fundamental aspect of amenity than is perhaps the case in an urban situation. However, this is a consideration which should not be overstated. For example, some high rise apartments in central Melbourne enjoy spectacular views and the degree to which the protection of such views can be allowed to compromise planning scheme policies directed towards more intensive development in such an urban context, are not we think substantially different to that which should apply on the mountain.
8. In the subject context, that is a site within the commercial area of the Mount Buller village, we think the views should be protected to the extent that the protection of views does not compromise the outcomes sought by the planning scheme in relation to intensity of development, urban design, and architecture. A relevant consideration in making this judgement is whether or not the building complies with relevant design criteria, including those in respect of building height and setbacks.
9. Considerations which have influenced our decision in this regard are:
   • Our view that the architecture of the proposed building is well resolved, and broadly consistent with the outcomes sought by the planning scheme, and therefore we are a reluctance to interfere with the form of the building in any radical way;
   • The fact that the proposed building exceeds the discretionary height limits set out in the DDO, at its western end, albeit to a minor extent;
   • The fact that the basement level of the building rises above natural ground level at the eastern end of the land, increasing the apparent height of the building when viewed from New Summit Road;
   • The fact that the basement level could be lowered, perhaps at a considerable cost, without compromising vehicular or pedestrian access to the building from New Summit Road.

It is our conclusion that the overall height of the building should be lowered by 1 metre primarily by the deeper excavation of the building into the site. We think that this change will somewhat reduce the impact of the building on views, improve compliance with the DDO design requirements, and reduce the visual impact of the building when viewed from New Summit Road.

1. The proposal includes a sauna and hot tub to the rear of the proposed building below Abom Way at level 03. This sauna and hot tub are associated with the "day spa" type facility which is part of the overall proposal, and is located on the same level. Objectors opposed the sauna and spa being concerned about the users of these facilities adversely affecting their amenity, principally by the emission of noise. The Responsible Authority's response to these objections was to require the deletion of these facilities[11].
2. The proposed sauna and spa are an aspect of the overall commercial enterprise proposed for the subject land. Residential amenity is relevant in the commercial area of Mount Buller village, it is essentially a mixed use environment in which dwellings are an important aspect of the mix of uses. Nevertheless, we do not think it appropriate, within this commercial environment, to refuse to allow a commercial activity of this type, unless we could not be satisfied that the potential for an amenity impact could not be reasonably managed. In this case we do not think it should be beyond the wit of the architects to design an attractive acoustic and visual screen in respect of the proposed sauna and spa while at the same time preserving its essentially outdoor character. Moreover, the amenity impacts of this facility could be further limited by imposing time limitations on its use by way of a condition of permit.

1. Objectors were also concerned about the likelihood the public, other than residents and guests of the proposed apartment hotel, accessing the public facilities of the hotel via Abom Way. The concern was that the increased pedestrian movement along Abom Way would adversely affect their amenity, particularly late in the evening. We are of the view that it is entirely inappropriate to limit public access to the subject land from Abom Way. Such a limitation would be inconsistent with the DDO provisions directed towards allowing for the free movement of pedestrians and skiers through the village, particularly in the context of a site within the commercial area of the village.

1. The Mount Buller strategic statement (clause 21.05) includes a strategy in relation to the use of colours and materials which seeks to ensure that development has considered and will, ie:

Be constructed of materials and colours that can conjure up associations with the surrounding alpine environment and are selected with the intention of lasting for generations.

1. Within the village the existing dominant colours generally tend to be creams, tans and greys. Painted surfaces are most common. Local granite, unpainted timbers and colour bond are also used extensively. Painted surfaces using blues and greens are not predominant in the commercial area but are to be found particularly within the residential areas of the village.
2. The facing of the front facade of the building with rough hewn granite and with milled basalt tiles is an appropriate response to this policy. Granite and basalt both occur on Mt Buller. The subject site is on basalt and most of the Village area is on granite. There is nothing in the design guidelines that indicate that milled rock is unsuitable just as dressed timber is not unsuitable. In general the mix of materials selected by the architects represents a high quality response to the relevant policy.
3. An important aspect of the architecture of the front façade of the proposed building is the projecting elements which frame windows and balconies and have been called chutes by the architects. The chutes are an important part of the articulation of the front façade of the building. These chutes are irregular in size and project from the stone facades of the building to varying degrees. The exterior of the chutes is stainless steel and the interior is coloured glass[12]. The coloured glass is designed to extend beyond the edge of the stainless steel to create a coloured exterior edge to each of the chutes.
4. The colours of the chutes vary in a rainbow pattern across the face of the building commencing with subtle mauve colours towards the eastern end of the building then moving across the face of the building with blues, greens, yellows and pinks. It is accepted that the architects have drawn these colours from the alpine environment, but they are clearly not the dominant colours one experiences in panoramic views of the mountain landscape. The architect's use of colour is controversial, in particular the use of bright pinks. The Responsible Authority has imposed a condition requiring in relation to the chutes that only alpine colour tones be used, that there be no pink hues or fluorescent colours and that colour only be used on the interior of the proposed chutes.
5. The fundamental issue is the proper approach to policy. Should this policy be applied cautiously, to ensure its consistent application, or should it be applied flexibly to achieve more imaginative responses while creating the risk of inconsistency.
6. This type of policy in relation to use and materials and colours is not unusual, it appears in almost every rural planning scheme, and even in some suburban contexts. It is a concern that if such policies are applied in a mechanistic way then the outcomes may be safe but uninteresting and disregard the way in which form light and shade can affect the subtlety of an outcome. It is not solely the choice of colour that determines achievement of a satisfactory aesthetic outcome. In relation to the particulars facts of this case it can be observed:
   • It was never intended that any of the colours be fluorescent;
   • The apparent dominance of the colours in some of the renderings is a product of the difficulty of representing a three dimensional form in two dimensions;
   • In actuality, an observer would be aware of the dominant grey of the stone face of the wall behind the chutes;
   • To the extent that the colours are in any sense dominant, this is likely to quickly recede with distance, in any panoramic view of this part of the village, the tans and greys of the rock façade will overwhelm the presence of colour;
   • Even in the renderings the colours extending across the face of the building are for 80% of the façade very subtle;
   • The application of colour to glass seems to soften rather than intensify the brightness of the colour.
7. It is the pink and yellow-orange hues at the western end of the front façade which are the most controversial. The Responsible Authority's approach of banning pink hues[13] is understandable but goes too far. It ignores the fact that not all pinks are bright or lacking in subtlety. Moreover, bright colours are not entirely foreign in the alpine environment. A better outcome would be to require a more subtle transition to the brighter pinks and yellow-orange hues and to ensure that the brightest pinks and yellow-orange hues are used to a very limited extent.

1. The dispute in relation to geotechnical considerations was largely resolved by the joint statement made by the geotechnical witnesses. There remained a disagreement in respect of the nature of the conditions that should be included on the permit, with the differences of opinion being largely related to the "auditing" of geotechnical outcomes. We basically accept the permit applicant's contention that the conditions provide a satisfactory regime for this purpose. Its important to recognise that the planning scheme and permits issued under the planning scheme are not the sole regulatory vehicle for the control of geotechnical issues, and the planning system does not represent the sole basis upon which parties have responsibilities vested in them in respect of the creation and maintenance of a safe geotechnical environment on the mountain.

1. Again, there was broad agreement between the traffic engineering witnesses. In relation to the remaining areas of disagreement, we observe:
   1. The use of Abom Way for public access has been dealt with earlier in these reasons;
   2. Our decision to lower the building will facilitate the provision of an appropriately graded pedestrian/wheelchair access ramp at the basement entry;
   3. The level of vehicular movement into and out of the proposed basement is sufficiently low for us to conclude that an entirely separate pedestrian/wheelchair ramp access is not warranted[14];
   4. Condition 2 of the Notice of Decision to Grant a Permit provides an adequate mechanism for the management of construction and the maintenance of vehicular access as it affects Abom Way.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be varied and a permit be granted.
2. The permit will include the conditions contained in the notice of decision to grant a Permit issued by the responsible authority with modifications which have regard to the submissions and evidence of the parties and the matters which arise from these reasons.

1. The complex will comprise a total of 38, 1, 2 and 3 bedroom apartments over five levels serviced by two lift cores. A level by level description is set out below.
   • Level B1 comprises the basement car park and includes individual storage areas, loading bay and service utility meters.
   • Level 00 is the first habitable floor above the New Summit Road level and will comprise a reception and bar, a small retail tenancy of 18m and ten one bedroom apartments. Dwellings will be oriented to the north onto outdoor decks each comprising a hot tub for use of the apartment residents. Various service functions will be located at the rear of the building.
   • Level 1 comprises six, two and three bedroom apartments, all with an open terrace and hot tub facing over New Summit Road, while the two central apartments will also have a rear courtyard space
   • Level 2 comprises seven, two and three bedroom apartments, each with outdoor terrace. A ski and boot room, substation and switch room are also located at this level.
   • Level 3 comprises seven, two and three bedroom apartments each with a private terrace. A spa and treatment rooms, sauna and external common deck are located at this level and will be accessible from Abom Way, a floor below the level of the roadway.
   • Level 4 comprises eight apartments (six fronting New Summit Road and two oriented toward Abom Way). The three bedroom apartments oriented to New Summit Road each have internal access to a mezzanine level room and bathroom above.

[1] Mr Robert Day and Mr Timothy Holt Civil Engineers produced a witness statements on behalf of Zacamoco P/L and Domdada Holdings P/L respectively. These witnesses were not called having produced a joint statement for the benefit of the Tribunal

[2] Conditions 1(c), 1(e), 1(f) and 1(r) in the Notice of Decision to Grant a Permit (The conditions relate to the removal of hot tubs, the provision of disabled access and the colour treatment of the chutes on the northern façade).

[4] The reserve to the west is largely covered by snow gums some close the site boundary and potentially effected by excavation on the site.

[5] Teac Australia PL v Port Phillip CC [1999] VCAT 1222.

SMA Projects v Port Phillip CC [1999] VCAT 1312

[7] The fall in Abom way is largely a consequence of the fact that Abom way curves down slope towards the north (towards the frontage of the site).

[8] The uncertainty argued in respect of the precise accuracy of the montages does not compromise their utility in this regard.

[9] That is, a fifth level above natural surface level.

[10] See for example Stanley Street PL v Melbourne CC [2004] VCAT 928, which adopted the decision of the Tribunal in 1999/19285, Juliano, Furletti and Scott and Ors v Melbourne CC.

[11] During the course of the hearing, various proposals were put forward on behalf of the permit applicants in relation to minor relocations of spas and decks, primarily in response to arborcultural considerations. Some further changes might arise as a consequence of our decision to lower the building. Other than these changes, we do not support the other conditions of the Notice of Decision to Grant a Permit directed towards the deletion or resiting of spas or hot tubs within the development.

[12] The coloured glass is not tinted glass, rather it is glass with an applied colour like that which has become a popular material for splash backs in kitchens etc.

[13] and of limiting the use of colour to the interior of the chutes.

[14] We think that the disabled access solution proposed by Mr hunt is generally sufficient, it will need to be revised having regard to our decision to lower the height of the building, therefore condition 1(r) should remain.