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[2003] VCAT 1815
appellant. The Tribunal allowed the applicant's failure review and directed the Responsible Authority to issue a permit subject to specified conditions (Conditions 1-20). The permit requires amended plans...
Agart Studio applied for a permit to build two split-level double-storey dwellings at 850 Toorak Road. The City of Boroondara failed to determine the application in time and had indicated it would refuse for reasons including open space, privacy and scale. The Tribunal reviewed the case under s79, found the zoning and policy supported two dwellings, considered the design complied with Rescode, accepted that existing screening and a north-facing balcony addressed privacy and open-space concerns, and concluded there were no planning grounds to refuse. The Tribunal directed the Responsible Authority to issue a permit with conditions (including amended plans and landscaping requirements).
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1,789 words · generated 27/08/2026
Agart Studio lodged a planning application for 850 Toorak Road, Hawthorn East, to construct two split-level, double-storey dwellings with semi-basement garages, terraces and associated works. The proposal involved neo‑classical design elements, brick/render finishes and two crossovers (one to be reinstated). The land is a rectangular 665 sqm lot with a 15.48 m frontage and falls from north‑west to south‑east, and is within the Residential 1 Zone under the Boroondara Planning Scheme. The site abuts Toorak Road, which is a Road Zone Category 1, and a permit was therefore required both because the proposal sought more than one dwelling on a lot and because of the road zone interface (Reasons [2], [3], [4], [6], [7]).
1 cited instrument linked from this judgment.
The Responsible Authority (City of Boroondara) failed to make a decision within the prescribed statutory period. The Responsible Authority advised that, if the failure review had not been lodged, it would have refused the application for five grounds: insufficient open space; overlooking and loss of privacy from multiple windows/areas; insufficient first-floor setback for unit 2; poor levels of internal amenity (overshadowing and excessive screening); and the proposal’s scale and bulk (Reasons [8(i)–(v)]). Agart Studio sought a Tribunal review under s79 of the Planning and Environment Act 1987 of the Responsible Authority’s failure to grant a permit (Reason [1]).
A hearing took place on 21 November 2003. The Tribunal received oral submissions and photographs from both sides, and was able to give a verbal decision at the end of the hearing (Reason [10]). The Tribunal allowed the failure review and directed the Responsible Authority to issue a permit with detailed conditions, including amended plans (notably a kitchen window screen height of 1,700 mm), landscape plans specifying advanced tree planting, drainage and parking works, concealment of services, underground electricity, and the usual time limits for commencement and completion (Orders and Conditions 1–20; Condition 20 sets expiry times).
The Tribunal's reasoning is short and fact‑specific. The central points recorded in the reasons are:
Zoning and policy context: the Tribunal observed that the site is in the Residential 1 Zone and that "zoning and policy allow and encourage such a proposal", that is, multi‑dwelling development of this kind is consistent with the planning framework for the area (Reason [11]).
Amenity and design compliance: the Tribunal expressly found the proposal "complied with Rescode and was a well designed layout to minimise any amenity loss to neighbours or future occupants" (Reason [11]). That finding addresses a cluster of the Responsible Authority’s criticisms, private open space, internal amenity, overlooking and scale/bulk, by reference to the planning code (Rescode) and the details of the proposed design.
Open space and orientation: the Tribunal accepted that open space had been located away from the noisy Toorak Road frontage and that the north‑facing upper balcony of dwelling 2 compensated for perceived deficiencies in the ground level private open space (Reason [11]).
Privacy and screening: the Tribunal noted that an objector to the Responsible Authority had withdrawn, that letters from abutting neighbours were favourable, and that "existing boundary fences and growth created excellent screening to preclude overlooking to abutting properties" (Reason [11]). On the facts, therefore, the Tribunal considered overlooking/privacy concerns overcome.
Absence of persuasive planning grounds to refuse: taken together, the Tribunal concluded there were no planning grounds to disallow the proposal and directed the Responsible Authority to issue a permit subject to conditions (Reason [12]).
In short, the Tribunal weighed the Responsible Authority’s stated grounds for refusal against the scheme, Rescode compliance, the proposal’s specific design features and the on‑the‑ground factors (existing screening and neighbour responses), and reached a factual conclusion that the planning controls and site circumstances supported issuing a permit.
This decision is a situational application of established statutory processes and planning policy. The statutory mechanism invoked was s79 of the Planning and Environment Act 1987 (Reason [1]), which permits Tribunal review where a responsible authority fails to determine an application in time. The Tribunal applied the local planning controls, in particular the Residential 1 Zone and Rescode principles, and assessed amenity impacts (private open space, overlooking, setbacks, scale and bulk).
Before the decision: the procedural posture was a "failure" review under s79 and a Responsible Authority having signalled it would have refused on specified grounds if the failure review had not been pursued (Reason [8]).
After the decision: the Tribunal’s order required the Responsible Authority to issue a permit with conditions tailored to address amenity and technical matters (Orders and Conditions 1–20). The decision therefore reinforces that, in a failure review, the Tribunal will assess the application against the statutory and scheme controls, and can direct a permit to be issued if the Tribunal considers the statutory tests and planning objectives are satisfied on the facts.
This judgment does not alter legal doctrine; it illustrates application of planning controls and statutory review powers in a local context. There is no reference in the reasons to any judicial precedent, no discussion of novel legal principles, and no broad doctrinal reform. The decision is therefore best read as a fact‑sensitive application of standard planning law tools.
Reason [1]: "This application is brought under sec79 of the Planning and Environment Act 1987 to review a failure of the Responsible Authority to grant a permit within the prescribed time."
Plain English: The Tribunal's power here comes from s79; the applicant asked the Tribunal to intervene because the council did not make a decision within the statutory timeframe.
Reason [7]: "The subject land and surrounding land is zoned Residential 1 under the Boroondara Planning Scheme and no overlay controls affect the land. The site abuts a category 1 Road Zone, being Toorak Road. A permit is required to construct more than one dwelling on the land and because of the Road zone."
Plain English: The site sits in a standard low‑density residential zone; the plan requires a permit for more-than-one-dwelling development and because the site borders a major road.
Reason [11]: "The site is suitable for a two dwelling development ... Zoning and policy allow and encourage such a proposal ... The proposal complied with Rescode and was a well designed layout to minimise any amenity loss to neighbours or future occupants."
Plain English: The Tribunal judged that both the planning rules and the particular design supported two dwellings. The design met the residential code (Rescode) and was arranged to reduce impacts on neighbours and residents.
Reason [11]: "The existing boundary fences and growth created excellent screening to preclude overlooking to abutting properties."
Plain English: On the facts, physical screening already present on the site meant overlooking would not be an unacceptable problem.
Reason [12]: "There are no reasons or planning grounds to disallow this proposal and the Responsible Authority will be directed to issue a permit with appropriate conditions ..."
Plain English: The Tribunal found no valid planning reason to refuse the permit and therefore ordered the permit be issued, with conditions to manage details and impacts.
This decision will be directly relevant when the following factual matrix exists:
A proposal for two or more dwellings on a lot within a Residential 1 Zone where the planning scheme allows multi‑dwelling development, and where a permit is required (including where the site abuts a Road Zone Category 1) (Reasons [6], [7]).
A Responsible Authority fails to determine an application within the prescribed time, giving rise to a s79 failure review (Reason [1]).
The Responsible Authority's likely grounds for refusal focus on amenity impacts such as open space, privacy/overlooking, first‑floor setbacks, internal amenity and scale/bulk (Reason [8]).
On the facts, the proposed design complies with Rescode, meaningful screening or other site features mitigate privacy concerns, and neighbours either do not oppose or support the proposal (Reasons [11]).
When these features are present, the Tribunal’s approach in this case, focusing on zoning/policy alignment, code compliance (Rescode) and empirical mitigation measures (screening, orientation and neighbour responses), is likely to be persuasive in a failure review context.
This decision is a VCAT member decision and the reasons are brief and factual. The judgment contains no discussion of later authorities and cites no cases. Consequently, the decision itself does not establish binding precedent beyond its persuasive effect in similar VCAT or council matters. The reasons do not analyse legal doctrine at length. The text gives no information about subsequent judicial or administrative treatment of this decision. Therefore any assessment of how later courts or tribunals have treated Agart Studio v City of Boroondara cannot be drawn from this judgment alone; the decision should be treated as a factual Tribunal outcome applying planning controls on the specific facts (Reasons [10]–[12]).
The judgment is concise and fact‑specific, leaving some areas unaddressed or only implicitly treated:
Rescode detail: The Tribunal states the proposal "complied with Rescode" but does not identify which specific Rescode clauses were central to that conclusion. For practitioners wanting predictive detail, the decision does not provide clause‑level reasoning on setbacks, private open space quantum or overshadowing tests.
Weighting of neighbour consent: The Tribunal refers to letters from abutting neighbours and a withdrawn objection. The decision does not elaborate on the extent to which neighbour support influenced the planning merits assessment, compared to strict code compliance.
Screening as mitigation: The Tribunal accepted existing boundary fences and vegetation as sufficient screening. The judgment does not discuss whether such screening must be permanent, how it should be secured by permit condition or how future loss of screening would affect long‑term amenity. The permitted conditions do require landscaping and replacement of dead trees (Conditions 4–6), but the interplay between existing screening relied upon in evidence and landscape‑conditioned plantings could be more fully articulated.
First-floor setback and bulk: The Responsible Authority raised first-floor setback and scale/bulk as refusal grounds (Reason [8(iii), (v)]). The Tribunal concluded the scheme complied with Rescode and minimised amenity loss, but did not record a technical assessment of overshadowing, visual bulk metrics or a clause-by-clause Rescode test.
Limited reasoning and precedential scope: Because the Tribunal's reasons are succinct and largely declaratory, the decision's precedential value is limited. It is primarily an application of statutory review powers and planning controls in a single localized context. Practitioners must be cautious in extrapolating broader legal principles from these brief reasons.
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The request to review the failure of the Responsible Authority to Grant a Permit within the prescribed time has been considered and allowed. The Responsible Authority is directed to issue a permit with the following conditions:-
1. Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies provided generally in accordance with the plans submitted with the application but modified to show:
(a) screen door kitchen window to 1,700mm above floor level.
2. The layout of the site and size, design and location of the buildings and works as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
3. Buildings, engineering works and fences must be maintained to the satisfaction of the Responsible Authority.
4. Within 30 days of the endorsement of the plans referred to in Condition 1 of this permit, a landscape plan prepared by a landscape architect or suitably qualified and experienced person or firm incorporating:
(a) an accurate survey of all existing vegetation to be removed and retained and other natural features;
(c) a schedule of all proposed trees, shrubs and ground cover, which will include the location, number, size at time of planting, height and spread at maturity of all plants, the botanical names of such plants and the location of all areas to be ;
(d) planting required by any other condition of this permit;
(e) paving, retaining walls, fence design details, and other landscape works including areas of cut and fill and finished site levels;
(f) the provision of advanced tree planting (minimum height of 1.5m at the time of planting) with four evergreen trees capable of reaching a minimum height at maturity of 4.0m, located between the proposed kitchen and southern boundary of the site;
must be submitted to the satisfaction of the Responsible Authority. When the landscape plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of this permit.
5. Landscaping as shown on the endorsed landscape plans must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.
6. All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.
7. The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the occupation of the building.
8. Stormwater drains must be connected to a legal point of discharge approved by the Responsible Authority. Drainage connections within a road reserve must be to Council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.
9. Before the dwelling is occupied, areas set aside for car parking and driveways shown on the endorsed plans must be constructed and formed to such levels and properly drained so that they can be used in accordance with Australian standards regarding access levels and to the endorsed plans, to the satisfaction of the Responsible Authority.
10. External driveways and parking areas must be constructed with dark coloured concrete or bitumen, coloured patterned concrete, interlocking paving blocks or brick paving to the satisfaction of the Responsible Authority.
11. Car spaces must not be used for any other purpose other than the parking of vehicles, to the satisfaction of the Responsible Authority.
12. The new vehicle crossover must be constructed in accordance with Council's standard details. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority. The redundant crossover shall be reinstated with kerb and channel and nature strip re-grassed.
13. All outdoor lighting must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.
14. Garbage containers must be stored out of general view, to the satisfaction of the Responsible Authority.
15. All clotheslines must be positioned so as not to be visible from any nearby street, to the satisfaction of the Responsible Authority.
16. All pipes (except down-pipes), fixtures, fitting and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.
17. No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.
18. Any air-conditioning or cooling units, condensers and the like must not be located on external walls or on balconies without the prior written consent of the Responsible Authority.
19. Reticulated electricity must be provided underground to the new dwelling, to the satisfaction of the Responsible Authority.
* The development does not start within two (2) years of the date of this permit; or
* The development is not completed within four (4) years of the date of this permit.
The Responsible Authority may extend the time referred to if a request is made in writing before the permit expires or within three (3) months afterwards.
1. This application is brought under sec79 of the Planning and Environment Act 1987 to review a failure of the Responsible Authority to grant a permit within the prescribed time.
2. The subject lands as described by Ms Laidlaw is:-
"The appeal site is located west of Burke Road on the south side of Toorak Road, Hawthorn East. The land is identified as Lot 11 on Plan of Subdivision No 14925 Volume 6252 Folio 1250290. The site is rectangular in shape and has a frontage of 15.48 and a depth of 44.2m. The site has an approximate area of 665sqm and has a fall from north west to south east of about 5 metres. A 1.8m drainage and sewerage easement runs adjacent to the rear (south) boundary of the site.
3. The subject site is developed with a single storey weatherboard dwelling that was constructed around 1910. The existing dwelling is setback approximately 20 metres from the front boundary of the site and given the fall of the land is not clearly visible from Toorak Road. The site includes a number of trees and shrubs with dense vegetation behind the front fence, however none of this vegetation is considered to be of significance. Vehicle access to the site is via an existing crossover located towards the centre of the front boundary of the site."
4. The proposal, also from Ms Laidlaw's submission is:-
"This proposal involves the construction of two double storey dwellings and alterations to the access arrangements abutting a Road Zone Category 1. The dwellings are split level and comprise almost two and a half storeys.
5. Relevant features of the proposal are summarised as follows:
* A semi-basement including a double garage, billiard room, store room, plant room, wine cellar and powder room
* A ground floor including a meals, family, kitchen, living and dining room
* A first floor including a master bedroom, en-suite, dressing room, a bathroom and two additional bedrooms. A terrace is also proposed, of which 69sqm is to be secluded.
* A semi-basement including a double garage, store room, powder and laundry room
* A ground floor including a master bedroom, en-suite, bedroom, kitchen, meals, living and dining room
* A first floor that is split-level and includes a family room, bathroom and a bedroom. A terrace off the family room is proposed on the north side of the dwelling.
* A total of 76sqm of private open space is proposed, of which 60sqm is to be secluded.
6. The dwellings include neo-classical design elements and a re proposed to be constructed of brick with a sandy/cream render. The roofs are to be constructed of charcoal coloured tiles at a pitch of 25 degrees. A 1.75m brick masonry front fence with a rendered finish is also proposed, along with powder coated metal gates. The existing crossover is proposed to be reinstated and a new 3m wide crossover constructed at the northeast corner of the site.
7. The subject land and surrounding land is zoned Residential 1 under the Boroondara Planning Scheme and no overlay controls affect the land. The site abuts a category 1 Road Zone, being Toorak Road. A permit is required to construct more than one dwelling on the land and because of the Road zone.
8. This is a 'failure' request and no reasons are or need be given, however, the Responsible Authority advised that if the request had not been lodged, they would have refused the application on the following grounds:-
(i) Insufficient open space has been provided to meet the reasonable recreation and servicing needs of future residents.
(ii) Overlooking from the kitchen window of unit 1 towards the east, overlooking from the kitchen window of unit 2 to the west and overlooking from the meals areas of unit 2 to the south would result in a loss of privacy and would be detrimental to the amenity of adjoining properties.
(iii) The proposed setback of the first floor of unit 2 from the eastern boundary of site is insufficient and would have a detrimental impact upon the adjoining property.
(iv) The proposed development would offer poor levels of internal amenity for the future occupants of the dwellings given the overshadowing of secluded private open space areas and the excessive amount of screening to windows.
(v) The scale and bulk of the proposed development will be detrimental to the surrounding area.
9. The proposal is for two (2) double storey dwellings, each with a basement carpark for two vehicles both accessed off a single driveway along the east side of the land.
10. Excellent submissions were made by both Ms Laidlaw and Mr Bowden and together with good photographs, the Tribunal was able to give a verbal decision at the conclusion of the presentations.
11. The Tribunal allowed the request and in summary form, the reasons were:-
* The site is suitable for a two dwelling development
* Zoning and policy allow and encourage such a proposal
* Open space has been developed away from noisy Toorak Road and the north facing upper balcony of dwelling 2, compensates for the south area ground level private open space criticised by the Responsible Authority.
* The only objection to the Responsible Authority had been withdrawn.
* Letters were tabled form all abutting neighbours basically happy with the proposal.
* The existing boundary fences and growth created excellent screening to preclude overlooking to abutting properties.
* The proposal complied with Rescode and was a well designed layout to minimise any amenity loss to neighbours or future occupants.
12. There are no reasons or planning grounds to disallow this proposal and the Responsible Authority will be directed to issue a permit with appropriate conditions that were discussed at the conclusion of the hearing.
Agart Studio
City of Boroondara [2003] VCAT 1815
The Tribunal allowed the applicant's failure review and directed the Responsible Authority to issue a permit subject to specified conditions (Conditions 1-20). The permit requires amended plans (notably a 1,700mm high screen door kitchen window), landscaping plans with advanced trees, drainage, parking and crossover works, maintenance obligations, concealment of services, underground reticulated electricity, and standard permit expiry times (Orders and Conditions 1-20; Permit expiry terms in Condition 20).