appellant. VCAT set aside the decision of the Responsible Authority (Bayside City Council) and granted a permit for the development of two dwellings as an additional floor above the existing four-storey...
Key principles
Where a planning proposal falls for assessment under a planning scheme containing interim design controls (here DDO6), the Tribunal must apply the Scheme as it exists at the time...
Discretion under a DDO to vary non-mandatory numeric controls (maximum height, number of storeys, setbacks) permits assessment against the design objectives and guidelines of the...
On the facts, an additional storey that is set back, reduced in footprint, and articulated so that its visual prominence is limited, and where photomontages and site inspection...
The mere fact that a site is among the first to be redeveloped within an Activity Centre is not a proper planning reason to refuse development, provided the design objectives of...
Issues before the court
Whether the proposed additional (fifth) storey results in an unacceptable urban design outcome and adverse impact on neighbourhood character.
Plain English Summary
The Tribunal allowed an applicant to add a fifth storey (two apartments) to an existing four-storey building in the Church Street Activity Centre, finding that the addition, given its setbacks, reduced footprint and design, would not adversely affect neighbourhood character or urban design objectives in the interim DDO. The Council's refusal based on DDO6 and Clause 22.07 was set aside and a permit granted with conditions.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,575 words · generated 20/06/2026
What happened
3 Male Street Pty Ltd sought planning permission to add a fifth storey, accommodating two three-bedroom apartments, to an existing four-storey building at 3 Male Street, Brighton. The site sits within the Church Street Major Activity Centre, close to Middle Brighton station. The existing building was constructed under an earlier permit (2005). The Responsible Authority, Bayside City Council, refused the application on the basis that an additional storey would produce an unacceptable urban design outcome, would conflict with the design objectives of Design and Development Overlay Schedule 6 (DDO6) and the neighbourhood character policies of Clause 22.07, and therefore amounted to an overdevelopment of the site (Reasons 'What is this proceeding about?' [2]). The applicant applied to VCAT for review. After a hearing and site inspection, and after the applicant amended plans to increase part of the north setback by 3 metres, the Tribunal (Ann Keddie, Member) set aside the Council’s decision and granted a permit subject to conditions (Order dated 7 April 2009; Appendix A).
Whether the Tribunal should apply the interim DDO introduced after the original permit for the four-storey building was granted, and whether that...
Whether a site being among the first redeveloped in an Activity Centre permits refusal because of prematurity or sequencing concerns.
Cited legislation
No linked legislation citations have been extracted yet.
Key process steps:
Application lodged for two dwellings above an existing four-storey building (Permit 2008/310/1).
Council refused largely on urban design and neighbourhood character grounds (Reasons [2]).
VCAT hearing 2 March 2009; site inspection 4 March 2009; Tribunal considered photomontages, expert evidence, and an agreed minor amendment increasing north setback (Having inspected... bullet points).
VCAT concluded the addition was compatible with character and did not create a negative urban design impact, granted permit with conditions (Conclusion [1]–[2]).
Why the court decided this way
The Tribunal’s reasoning followed the familiar structure of planning assessment: identify applicable statutory controls and policies, inspect and test the proposal against those controls and policies, and balance competing policy objectives.
Apply the Scheme as it stood: The Tribunal emphasised that interim controls in the planning scheme (DDO6) were in place at the time of hearing and must be applied, even though they did not exist when the earlier permit was granted (DDO schedule due to expire 30 June 2009). The Tribunal noted the Scheme must be applied as it exists at hearing (Reasons 'Does the proposal respond...' [3]).
Nature of the DDO: The Schedule to the DDO set numeric guidance (maximum 13.5m, maximum four storeys, specified setbacks), but those figures were not mandatory. The Schedule expressly allows discretion to vary height, storeys and setbacks; the guidelines require assessment against design objectives and neighbourhood impact (Reasons [6]). The Tribunal therefore assessed the proposal against the Schedule’s objectives and guidelines rather than applying a strict numeric veto.
Factual assessment of visual impact: The Tribunal undertook a site inspection and reviewed photomontages. It found the existing development was already intensive within the activity centre, that articulation and setbacks of the existing fourth level reduced prominence, and that the proposed fifth floor was set back behind the parapet and had a reduced footprint. The Tribunal found the additional floor would be minimally visible from key viewpoints (including Church Street) and would have little visual impact to properties opposite Male Street; future neighbouring development was likely to further moderate the skyline impact (Having inspected... bullet points).
Rejecting prematurity/sequence argument: Council had argued the development was premature given its position toward the end of the activity centre. The Tribunal rejected the notion that the planning scheme could be used to dictate the order of development. It accepted expert evidence that other sites would progressively develop and that being first to redevelop is not in itself a reason to refuse (Reasons [8]). That point undermined Council's implicit sequencing objection.
On these bases the Tribunal concluded the proposal satisfied the applicable design objectives and would not have a negative urban design impact or adversely affect landscape character or surrounding residential land (Conclusion [1]–[2]). It set aside the Council decision and granted a permit subject to conditions.
Before and after state of the law
Before: The factual posture reflects the ordinary operation of planning scheme controls and VCAT's role: where a proposal exceeds numeric overlay controls but the controls are phrased to allow discretion, decision-makers must weigh objectives and guidelines and not apply controls mechanistically. The case reinforces that interim DDO controls introduced after the grant of an earlier permit are to be applied if in force at decision time.
After: The decision confirms two key propositions in the Victorian planning context:
Numeric overlay limits that are not mandatory must be assessed in the context of the Schedule’s design objectives and guidelines; an exceedance is not automatically fatal.
Sequencing or prematurity arguments, that a site should not be redeveloped because it is 'too early' in the activity centre redevelopment process, are not legitimate grounds for refusal if the proposal otherwise meets the Scheme’s design objectives.
The case is practical precedent for similar DDO assessments: where setbacks, articulation and design reduce visual prominence from key viewpoints and site inspection supports limited impact, VCAT will permit departures from numeric overlay maxima that are discretionary.
Key passages with plain-English translation
Council's reason for refusal (plain description of Council's case):
Quotation: "The Council has determined that a permit should not be granted because it considers that to allow an additional storey would result in an unacceptable urban design outcome having regard to the policy context and design objectives of DDO6 and the Neighbourhood Character policies of Clause 22.07. It considers that the proposal is an overdevelopment of the site." [2]
Plain-English: Council said the extra floor would make the building too large and out of character; it relied on the DDO and neighbourhood character policy to refuse.
Tribunal on sequencing:
Quotation: "I agree with Mr Scally's submission that it is not a Council's role through the planning scheme to dictate in which order sites within an activity centre should be developed." [8]
Plain-English: The Tribunal rejected the idea that Council can refuse a development just because other sites in the area have not yet been redeveloped.
Tribunal's dispositive finding:
Quotation: "Thus, I conclude that given the scale, design and setbacks; the overall height of the proposed additional floor is compatible with the Victorian two-storey character of Church Street." [Conclusion 1]
Plain-English: On balance, considering how the top floor is designed and set back, the Tribunal found it fits with the local character and is acceptable.
What fact patterns trigger this precedent
This decision is most directly relevant where:
A site lies within an Activity Centre and is subject to a Design and Development Overlay that sets non-mandatory numeric controls (height, storeys, setbacks).
An existing building constructed under an earlier permit seeks additional storeys that would exceed overlay numeric guidance but may be designed to reduce visual prominence (setbacks behind parapet, reduced footprint, articulation).
Council refuses primarily on urban design and neighbourhood character grounds, including claims of overdevelopment or prematurity/sequence concerns.
The applicant provides photomontages, amended plans increasing setbacks, and expert evidence concerning design outcomes and likely impact on neighbouring properties and views.
If these features are present, the 3 Male Street decision supports an argument that the Tribunal may prefer a qualitative, objective assessment of the design objectives and visual impact over strict numeric compliance.
How later courts have treated it
This deep dive is confined to the subject judgment. The decision itself records that both parties referred to other Tribunal decisions and the member read and noted those (Reasons [4]). The member cautioned that differences in zoning and context can limit the utility of other cases. The judgment thus treats other decisions as contextually informative rather than determinative. Practitioners should therefore treat 3 Male Street as an instance of principle application (assess objectives and guidelines, exercise discretion where schedules are permissive) rather than as a rule that numeric exceedance is always acceptable. For how later courts or VCAT panels apply it, users should search subsequent Tribunal and court decisions for citation history and follow-up authority.
Still-open questions
Numeric thresholds vs objectives: The decision underscores that non-mandatory numeric controls can be varied, but it leaves open how large a numerical departure can be before a Tribunal will no longer regard the design as compatible with character. The present decision turned on fairly modest vertical increment, set-backs and visual assessments. Larger departures may be treated differently.
Weighting of future development: The Tribunal relied partly on the likelihood that neighbouring redevelopment would moderate skyline impact. How much weight later panels should give to speculative, prospective redevelopment remains an open evaluative question; the line between reasonable prediction and conjectural reliance is not precisely delineated.
Interaction with mandatory controls: This decision applies where numeric limits are discretionary. Where an overlay or schedule makes numbers mandatory (or the local scheme expressly prohibits variation), the decision’s approach will not apply. Determining when a control is truly mandatory may itself be contentious.
Sequencing and policy-led redevelopment: The Tribunal rejected using sequencing as a refusal ground. However, there may be instances where a coordinated precinct strategy or a masterplan legitimately constrains development sequencing; the extent to which such strategic arrangements will alter the Tribunal’s approach remains for later cases.
Takeaway for practitioners: When confronting an application exceeding DDO numeric guidance, focus evidence and plans on articulation, setback, visual impact from key viewpoints and how the design meets the Schedule’s objectives; challenge any prematurity/sequencing objection as not being a valid ground unless supported by explicit mandatory controls or adopted masterplanning policy.
Judgment (32 paragraphs)
[1]
3 Male Street Pty Ltd v Bayside CC [2009] VCAT 631 (7 April 2009)
[2]
Section 77 of the Planning and Environment Act1987; Bayside Planning Scheme; Church Street Activity Centre; Business 2 Zone; Design Development Overlay Schedule 6; Additional floor to an existing 4 storey building and neighbourhood character.
The decision of the Responsible Authority in regard to Planning Permit Application No. 2008/310/1 is set aside. A permit is granted in relation to land at 3 Male Street, Brighton. The permit will allow the development of two dwellings above an existing four storey building generally in accordance with plans dated March 2008 subject to the conditions set out in Appendix A.
[5]
Mr D Scally of Best Hooper, Solicitors. Mr Scally called Mr A Biacsi, Town Planner of Contour and Mr T Watts of Atim3D Pty Ltd to give expert evidence.
[6]
Permission is sought to construct two dwellings as an additional floor to an existing four storey building comprising offices and serviced apartments with basement car parking at 3 Male Street, Brighton.
[7]
Business 2 Zone DDO2. Design and Development Overlay Schedule 6.
[8]
Under the provisions of Clause 24.02-4, a permit is required to construct a building or carry out works.
[9]
Under the provisions of the DDO a permit is required to construct a building or carry out works expect where:
[10]
A schedule to the Overlay specially states that a permit is not required.
For the construction of an outdoor swimming pool associated with the dwelling unless a specific requirement for the matter is specified in the schedule to the Overlay.
The proposed building works are not specifically exempt in the Schedule to the Overlay.
[11]
Clause 22.02 - Church Street Activity Centre - Urban Design Policy.
[12]
The review site is located on the north west side of Male Street, one property to the north east of Male Street. It has a 44.73m frontage, 40.23 depth and 1800m2 site area.
[13]
4 March 2009 site and immediate surrounds, including 11 and 15 Wells Street and longer views of the site.
[14]
3 Male Street Pty Ltd wish to add a further storey comprising two three bedroom apartments to an existing four storey building comprising of offices and serviced apartments for which an earlier planning permit was issued.
The Council has determined that a permit should not be granted because it considers that to allow an additional storey would result in an unacceptable urban design outcome having regard to the policy context and design objectives of DDO6 and the Neighbourhood Character policies of Clause 22.07. It considers that the proposal is an overdevelopment of the site.
3 Male Street challenges all grounds of refusal. It contends that the proposed fifth level is designed in such a way that the building will continue to appear in much the same way as the existing four storey building and thus have a minimal impact on neighbourhood character.
At the hearing there was no issue between the parties regarding the proposed residential use on strategic grounds, that the requisite car parking is already provided on the site and that the 93m2 of private open space provided for both dwellings is acceptable.
As a consequence the issues at the hearing focused on whether the proposed fifth storey would result in an acceptable urban design outcome and whether proper regard has been paid to the existing and proposed neighbourhood character.
[15]
Is the proposal consistent with state and local policies and the purpose of the zone?
[16]
There was no dispute between the parties that the site is suitable for the higher density mixed use development already built on the review site.
The SPPF encourages the consolidation of urban development within existing urban areas. Higher residential densities are encouraged with access to physical and community infrastructure. Metropolitan policy enunciated in Melbourne 2030 and more recently Melbourne @ 5 million emphasises the need for a more compact city which optimises existing infrastructure and protects green wedges.
The review site falls within the Church Street Major Activity Centre, and is located close to the Middle Brighton Railway Station. Local policies recognise a larger proportion of older residence than the Melbourne Statistical Division at Clause 21.02, and under Clause 21.05 seeks to accommodate the changing demographic profile. Other policy objectives emphasise well designed buildings which complement the surrounding residential character.
[17]
Does the proposal respond to the thrust of the DDO and its design objectives and pay proper regard to neighbourhood character?
[18]
The proposal, as detailed in the plans prepared by Watson Young Architects dated 30/06/08 increases the overall height of the existing building to 28.15AHD, or between 17.9 and 18.3 metres above existing ground levels. The existing lift overrun, stairwell and lobby at a height of 28.85m AHD is to remain. The apartments are set back behind the existing fourth floor parapet by distances varying between 2.5 to 5.39 metres along Male Street (14.59 to 15.70 metres from that property boundary), 2.65m to and the rear and southwest interfaces (6.3m and 9.97m from the respective boundaries), and 1.45m to 1.95m to the north east (7.9 to 8.5 metres from the boundary).
Council considers "whilst the proposal is supportable in terms of policy imperatives for higher density development in and around Activity Centre" it fails "to have proper regard to the neighbourhood character policies of clause 22.07 and the design objectives of DDO6".[1] It submitted that although clause 22.07 does not directly apply to the developments it is relevant in that it will influence development on properties in Wells and Male Streets.
The overlay control, Design and Development Overlay - Schedule 6, specifically relates to interim built form standards for major activity centres, put in place to allow statutory processes for an amendment to the planning scheme to be undertaken. This control was not in place when the permit for the existing building was granted in 2005. It is due to expire on the 30 June 2009. The applicant informed the Tribunal that the Amendment C58 has yet to be advertised. Not withstanding this, the Tribunal's role is to apply the Scheme as it exists at the time of the hearing. The decision which the Tribunal must make, as always, involves balancing all policies relevant to the proposal. These include interim controls existing at the time of the application.
During the hearing, both parties sought to relate the project to, or distinguish it from, a number of other Tribunal decisions. I have read and noted all the decisions to which I was referred. In particular, I looked at the large residential developments further along Wells Street now under construction or newly complete. I consider that the differences in both zoning and context reduce the assistance given by these cases in my decision making.
The design objectives under the DDO are:
[19]
It is reasonable to expect that other sites within and/or at the periphery of the Activity Centre will be progressively developed over time. Thus, will no doubt have a bearing on shaping the built form context of the area in years to come, particularly as major activity centres are acknowledged by planning policies as locations where substantial change is to be accommodated.[2]
[20]
The fact that the review site is amongst the first to be redeveloped should not preclude such a development, provided that the Council's design objectives are met.
[21]
Having inspected the site, its immediate and more remote surroundings and having reviewed the photomontages prepared by the applicant, I observe the following:
The existing development is an intensive one in the context of the Church Street Activity Centre of today.
The street interfaces of the existing building to the commercial buildings to the northeast and southwest along Male Street are well resolved.
The likely redevelopment of the building on the corner of Well Street in a three storey form has the potential to effectively mediate between 3 Male Street and the residential precinct to the south Well Street, given the width of the street, the configuration and setback of the block of flats and the high wall to number 44 Well Street.
To the east across Male Street, 41 Wells Street has a high side wall and No. 2 Male Street has a permit for redevelopment.
The proposed additional floor will have little visual impact to properties on the other side of the street.
From the intersection of Church Street, an important viewpoint where the two storey Victorian streetscape of the Church Street Activity Centre can be seen in context, the proposed additional floor will not be visually prominent. At the hearing, the applicant proposed a minor amendment to the form which increased part of the north setback by 3m, further reducing the visual impact of the fifth floor from this vantage point. Council had no objection to this change and the proposed conditions will reflect it.
The view of the western façade from the carpark beyond the railway line presents a modest addition to the skyline and one which future development on either the carpark or the adjacent block to the east near the railway reservation will further moderate.
In any case, the reduction of the fifth floor footprint has assisted the minimising of its visual impact which in any event will be more apparent from certain distance views than from the immediacy of the adjacent streets. Progressive intervening developments will further diminish this visual impact.
No evidence was put to me that the proposed fifth floor results in unacceptable changes to the urban design impact of the existing building, save for the matters discussed previously.
[22]
Thus, I conclude that given the scale, design and setbacks; the overall height of the proposed additional floor is compatible with the Victorian two-storey character of Church Street.
The additional floor will not have a negative urban design impact.
The proposal does not impact on the landscape character values of the Activity Centre.
The impact on the surrounding Residential zoned land will be minimal.
It follows that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit granted.
In deciding the conditions to be included in the permit, the Tribunal has had regard to the draft conditions provided by the responsible authority and the submissions and evidence of the parties.
[23]
Development of the subject land for 2 dwellings above an existing 4 storey building.
[24]
Before commencement of the development, three copies of revised plans drawn to scale and dimensioned, must be submitted to the Responsible Authority for approval. When approved the plans will be endorsed and will then form part of the permit.
The plans must be generally in accordance with the set of plans numbered TP01-TP06 Rev A prepared by Watson Young Architects/Interior (dated March 2008), but modified to show to the satisfaction of the Responsible Authority:
(a) the plant and equipment (including air conditioning units, heating units, hot water systems, etc.) which is proposed to be located externally;
(b) a basement plan showing the location of:
the carparking spaces that are to be allocated to the dwellings hereby approved (2 spaces per dwelling);
a secured storage area for the dwellings hereby approved (minimum 6 cubic metres per dwelling); and
a bicycle storage area for the dwellings hereby approved (1 bicycle space per dwelling);
(c) the incorporation of energy efficient water and energy devices to minimise greenhouse gas emissions and energy usage;
(d) modifications to proposed Unit 2 in accordance with the plan called "Alternative Floor Plan" and marked with the letter "A" attached to these conditions.
[25]
The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
[26]
All pipes (other than downpipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
[27]
Provision must be made on the land for the storage and collection of garbage and other solid waste to the satisfaction of the Responsible Authority.
[28]
Prior to the commencement of any works, a construction management plan must be submitted to the Responsible Authority for approval. The construction management plan must address, but be not limited to:
the location of all areas on-and/or off-site to be used for vehicle access, trade/worker car parking and delivery parking;
the control of noise and airborne matter, damage to public assets, and contact numbers for complaints;
the provision of a truck wheel-wash so that vehicles leaving the site do not deposit mud or other materials on roadways;
the covering and maintenance of all roads/storage areas/external stockpiles/or vacant areas to avoid dust nuisance to any residential and commercial premises;
the prohibition of delivery/tradesmen's vehicles from obstructing the surrounding streets during the construction period.
[29]
All works must accord with the approved construction management plan to the satisfaction of the Responsible Authority.
[30]
This permit will expire if:
the development and use is/are not started within two years of the date of this permit; or
the development is not completed within four years of the date of this permit.
[31]
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.
[32]
[1] J Rantino submission on behalf of Bayside page 16.
Parties
Applicant/Plaintiff:
3 Male Street Pty Ltd
Respondent/Defendant:
Bayside CC [2009] VCAT 631
AI Analysis
Outcomeappellant
Disposition:
VCAT set aside the decision of the Responsible Authority (Bayside City Council) and granted a permit for the development of two dwellings as an additional floor above the existing four-storey building at 3 Male Street, Brighton, subject to conditions (Order and Appendix A).
To ensure the height of new development is compatible with the character of the major activity centres and adjacent sites ... of Church Street, Brighton ...
To maintain the prevailing streetscape rhythm, building scale and height of the centres.
To maintain a strong landscape character with residential buildings set within vegetated surrounds.
Under the Schedule buildings and works in the relevant precinct (A) must have a maximum building height of 13.5m, a maximum number of storeys of four and specific setbacks from residential titles. These requirements are not mandatory. Discretion may be exercised to vary the height, number of storeys and setback requirements. Under the Schedule, guidelines additional to those in clause 42.04-5 apply to the consideration of applications under the Schedule to the DDO:
the design objectives of the schedule;
the neighbourhood and site description;
the design response;
whether the proposed siting, height, scale, design, building setbacks and landscaping will be in keeping with the character of the area;
the impact of the upper levels of the building on surrounding residential land;
the setback of the upper levels of the building from any residential zoned land.
Inspection of the site and its environs clearly demonstrates the changes to an area that larger buildings make, particularly when they are amongst the first to be developed. Council's Urban Design supported the initial four-storey development, partly because of the way in which the articulated façade and the setbacks reduced the visual prominence of the fourth level. However, in this case the Council's urban designer's concern appears to be that a higher building at the end of the activity centre is premature, rather than using the design guidelines to assess the impact of the proposed additional storey.
I agree with Mr Scally's submission that it is not a Council's role through the planning scheme to dictate in which order sites within an activity centre should be developed. I also accept the evidence of Mr Biacsi: