Applicant v Respondents

1. Stonnington City Council also participated in the VCAT hearing to contend that its approval constitutes an acceptable outcome and to seek that the permit be upheld. Stonington City Council, before this Court by letter dated 8 October 2024, advised that it would abide the decision of the Court and would not seek to participate other than if the Court is considering adverse costs orders.
2. The affidavits relied on by the parties include information concerning the hearing before VCAT.[3] Transcript of the VCAT hearing has not been obtained as lawyers for the first respondent were advised by Epiq that the audio recording was poor 'to the point of untranscribable'.[4] The Court was provided with the parties' written submissions to VCAT, which outlined how the relevant arguments were presented to the Tribunal.
3. The Tribunal conducted an inspection after the hearing. The reasons describe both Ball's property and the neighbouring property of McNee. Both have an east-west orientation with an easterly street frontage to Murphy Street in South Yarra. They share a side boundary where the north side of the Ball property meets the south side of McNee's property. Ball's dwelling is one of a pair attached on the south side of his property.
4. The existing setbacks on Ball's property are recorded by the Tribunal as:

The dwelling is constructed to the southern boundary and set back from the northern boundary between 1.55 metres and 2.45 meters. A 5.3 metre front setback is provided.[5]

1. The proposed extension that is the subject of the permit is relevantly described as:

To extend the dwelling towards the north and construct two walls on the common boundary with 47 Murphy Street, separated by a central courtyard. Specifically:

• The eastern most wall is 5.847m long and between 3.737m and 3.966m [high].
• The western most wall is 9.267m long and between 3.747m and 4.134m [high].
• The additions increase the site coverage from 47.83% to 58.43%.[6]

1. McNee's opposition to the permit was based upon inconsistency with neighbourhood character and the amenity impact on his property. Specifically it was inconsistent with:

(i) clause 54.02-1 and standard A1 (concerning neighbourhood character objective);

(ii) clause 54.04-1 and standard A10 (concerning side and rear setback objective); and

(iii) clause 54.04-2 and standard A11 (walls and boundary objective).[7]

1. The Tribunal described the key issue in the hearing as:

...whether the proposed extension to the dwelling on the subject land is an acceptable response to the neighbourhood character and whether the development will have an unacceptable impact on the amenity of the applicant's property.[8]

1. Ball's property is within the Stonnington Planning Scheme, General Residential Zone 1 (GRZ1), and within the Garden River Precinct. The Stonnington Planning Scheme requires Ball to obtain a permit to construct or extend a dwelling as his lot is less than 300sqm.[9] Where a permit is required the responsible authority must consider matters listed in clause 32.08-14, one of which states:

Dwellings, small second dwellings and residential buildings

For the construction and extension of one dwelling on a lot and a small second dwelling, the applicable objectives, standards and decision guidelines of clause 54.

1. Turning then to clause 54, that provision provides as follows:

Purpose

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To achieve residential development that respects the existing neighbourhood character which contributes to a preferred neighbourhood character.

To encourage residential development that provides reasonable standards of amenity for existing and new residents.

To encourage residential development that is responsive to the site and the neighbourhood.

...

Operation

The provisions of this clause contain:

• Objectives - an objective describes the desired outcome to be achieved in the completed development.

• Standards - a standard contains the requirements to meet the objective. A standard should normally be met. However if a responsible authority is satisfied that an application for an alternative design solution meets the objective, the alternative design solution may be considered.

• Decision guidelines - the decision guidelines set out the matters that the responsible authority must consider before deciding if an application meets the objectives.

Requirements

A development:

• Must meet all of the applicable objectives of this clause.

• Should meet all of the applicable standards of this clause.

If a development meets standard...A10, A11....or A20, it is deemed to meet the objective for that standard.

Where standard.....A10, A11......or A20, is met the decision guidelines for that standard do not apply to the application.

If a zone or a schedule to a zone specifies a requirement of a standard different from a requirement set out in this clause, the requirement in the zone or a schedule to the zone applies.

...

1. Clause 54 addresses specific issues: neighbourhood, site description and design response information to be provided,[10] neighbourhood character,[11] site layout and building mass,[12] and relevantly, cl 54.04 addresses amenity impacts. Clause 54.04 has six constituent parts. Clause 54.04-1 provides:

Side and rear setback objectives

To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings or small second dwellings.

Standard A10

A new building not on or within 200mm of a boundary should be set back from side or rear boundaries:

• At least the distance specified in a schedule to the zone, or
• if no distance is specified in the schedule to the zone, 1 metre plus 0.3m for every metre of height over 3.6m up to 6.9m, plus 1 metre for every metre of height over 6.9m.

1. Under clause 54.04-1 the planning scheme contains a diagram which demonstrates a visual representation of setbacks.

1. Standard A10 is varied by GRZ schedule 9 as follows:

For a distance of at least five metres behind the front façade of the building fronting the street, setback new buildings including basements a minimum of 2 metres from at least one side boundary and at least 1 metre from the other side boundary up to 3.6 metres in height.

Where no setback is specified standard A10 or B17 applies.

To ensure that the location length and height of a wall on a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings or small second dwellings.

A new wall constructed on or within 200mm of a side or rear boundary of a lot or carport constructed on or within 1 metre of a side or rear boundary of a lot should not abut the boundary:

• For a length more than the distance specified in a schedule to the zone; or
• If no distance is specified in a schedule to the zone, for a length of more than:

- 10 metres plus 25 per cent of the remaining length of the boundary of an adjoining lot, or

- Where there are existing or simultaneously constructed walls or carports abutting the boundary on an abutting lot, the length of the existing or simultaneously constructed walls or carports, whichever is greater.

....

A building on a boundary includes a building set back up to 200mm from a boundary.

The height of a new wall constructed on or within 200mm of a side or rear boundary or a carport constructed on or within 1 metre of a side or rear boundary should not exceed an average of 3.2 metres with no part higher than 3.6 metres unless abutting a higher existing or simultaneously constructed wall.

Walls should not be located on side boundaries for a distance of 5 metres behind the front façade of the building fronting the street.

1. The Tribunal recorded agreement between the parties that cl 54.04-2 and Standard A11 apply and that the walls do not meet Standard A11. The Tribunal concluded that the proposed boundary walls were non-compliant with two aspects of Standard A11. Firstly, that the easternmost boundary wall was recessed 0.887 metre behind the front façade and therefore does not comply with the 5 metre distance in GRZ9. Secondly, the proposed walls did exceed the maximum and average height for boundary walls.[13] However, the boundary walls did not exceed the length of the existing boundary wall on McNee's property and so this element was compliant Standard A11.
2. The parties addressed the Tribunal as to compliance with cl 54.04-1 and Standard A10. In written submissions prior to the Tribunal hearing, Ball compendiously sought variation from Standard A10 and A11, stating:

5.5. The majority of existing setbacks to the side and rear boundary are retained. The only exception applies to the two portions of walls proposed to be constructed on the northern boundary.

5.6 Variation is sought to Standards A10 and A11 for the same reasons. The front wall for the home office is proposed within the 5 metres distance from the dwelling facade. Furthermore, proposed walls on the northern boundary are higher than the prescriptive standard.

1. McNee, as objector and applicant, submitted at the Tribunal that cl 54.04-1 and 54.04-2 be considered in tandem intended to maintain space between buildings. The majority of the proposed home office intrudes upon the 5 m setback and extends to the boundary. The average and maximum heights of the two boundary walls as a whole exceed the Standard A11 requirements and have a negative impact upon the objector's dwelling because the location of the boundary walls abut private open space and habitable room windows of the neighbouring property.
2. At the hearing, Ball amended the written submissions to contend that the proposal complies with Standard A10.[14] In substance, he contended that the setbacks in Standard A10 are not applicable to that part of a building built on or within 200mm of a boundary. Standard A10 is only applicable to those parts of a building that are setback from the boundary at distance greater than 200mm.[15] In the design, those parts of the proposed building that are not built to the boundary are set back at least 1m and are unchanged by the design proposal.
3. McNee contested this construction and challenged the proposal's compliance with Standard A10. His argument was that the parts of the building between 201mm and 1000mm from the side or rear lot boundary were subject to but not compliant with Standard A10. This is because A10 establishes 'a setback profile within which any part of a building should not encroach'.[16] McNee submitted that Ball's interpretation would render A10 inapplicable and the setback requirements would be avoided for the entire building, once any part of a building is on or within 200mm of a boundary.
4. During the VCAT hearing, McNee articulated a question of law:

Do the setbacks provided in Standard A10 of clause 54.04-1 of the Planning Scheme apply to any part of a building that is not on or within 200mm of a side or rear boundary? [17]

1. Although the Tribunal member was not an Australian Lawyer, the parties agreed that the Tribunal as constituted could decide the question of law. At the conclusion of the hearing at VCAT on 19 June 2024 the Senior Member reserved his decision and made orders allowing the parties to make further submissions on the proper construction of standards A10 and A11.
2. McNee's submission, as recorded by the Tribunal in its Reasons, was that:
   • The term 'building' is defined in section 3 of the Planning and Environment Act 1987 (Vic) to include 'a structure and part of a building or a structure'.
   • Standard A10 applies to any part of a building that is within the distances from the side boundary specified in Standard A10 or a Schedule. It establishes a setback profile within which any part of a building should not encroach, other than the part of the building which is on or within 200mm of a boundary and is dealt with separately by A11.
   • Standard A10 is not rendered inapplicable where part of a building is on or within 200 of the boundary.[18]
3. Ball's submission was that Standard A10 does not apply to any part of a building that extends to be on or within 200mm of a boundary, but does apply to the proposed walls and other parts of the building including where the courtyard is shown. He submits that the proposal complies with A10 in respect of the setbacks where the building does not extend to the boundary.
4. The Tribunal reasons record the following:

47. On a strict literal and technical reading, given the definition of 'building' includes part of a building, the applicant's interpretation of standard A10 is arguable. However, it is difficult to perceive how, if this interpretation is adopted, compliance with standard A10 could be achieved where a building extends to the boundary, as it is proposed here. Where a wall is proposed on or within 200m of the boundary and that wall forms part of a room, it would not be possible for that section of the room sited 201mm or more from the boundary to comply with the standard A10 without being detached from the wall.

48. Pursuant to clause 54 the objective must be met, and the standard should be met.

49. I decline to answer the question of law raised by the applicant and do not propose to make a finding as to whether a standard A10 is met as, in the circumstances of this application, it will not assist in the consideration of whether the proposal represents an acceptable planning outcome.

50. A failure to meet a standard do not mean a permit cannot be granted. At its highest, it requires the exercise of discretion.

51. If standard A10 is met, then it is deemed to meet the objective of clause 5.404-1. If standard A10 is not met, as argued by the applicant in respect of the two sections which extend to the boundary, then for the reasons outlined above I am satisfied that the objective is met. I exercise the discretion available and find the outcome to be acceptable. The extension will respect the existing neighbouring character and the impact on the amenity of the adjoining property to the north has been limited to an acceptable extent.[19]

1. As an appeal from VCAT, the proceeding requires leave to appeal. Leave to appeal is confined to questions of law.[20] The first respondent accepts that the two grounds relied on raise questions of law. Leave to appeal requires the Court to be satisfied that the appeal has a real prospect of success.[21]
2. Ground Two is that the Tribunal misconstrued the planning scheme because it failed to interpret it as requiring consideration of the relevant standard (A10) distinctly from and in addition to the objective of clause 54.04-1. Ground Three is that the Tribunal was bound, but failed, to have regard to the design proposal's accordance with A10 in determining whether the proposal would produce an acceptable outcome. Ground 1 is not pressed.

1. In summary, the applicant submits that compliance with A10 required the Tribunal to construe, in order to apply, Standard A10. If compliance with A10 is achieved, it means that the objective of clause 54.04.1 concerning setbacks is deemed to be met. If the design proposal was non-compliant with the standard, the Tribunal had to be satisfied that the objective was met. By declining to answer the question of law posed, the Tribunal failed to consider the degree of departure from the standard and thus failed to have regard for a mandatory relevant consideration. This could only be properly considered if the standard was construed and applied.
2. The applicant submits that the context and purpose of the planning scheme require consideration of objectives, standards and decision guidelines conjunctively. The planning scheme specifically provides for circumstances where one aspect may be considered in isolation - such as the deeming provision where a standard is met.
3. Clause 54.04-1 regulates a number of aspects of the siting and design of single dwellings. McNee submits that the structure of the clause sets out objectives at a high level of generality that involves some subjectivity, before setting out standards that are prescriptive and objective. The relevant standards provide a quantitative yardstick or benchmark to create a measure of consistency and fairness when considering the objective of respect for neighbourhood character and limiting amenity impact.
4. The text of cl 54.04-1 supports the proposition that the standard informs an assessment of whether the objective is met because it describes consideration of an 'alternative' design solution. In context, use of the word 'alternative' calls for the decision maker to make a comparison between the standard and the design proposal.
5. The text of the clause also supports the submission that the standard is both a relevant and a mandatory matter. Meeting the objective is mandatory and the standard is something that 'should' be met. This language makes it clear that the standard remains a weighty factor when the discretion is to be exercised. While meeting Standard A10 operates so as to deem the objective met, McNee submits that the reverse is not so. Where Standard A10 is not met then the Tribunal does still need to consider, relevantly, the departure from the benchmark when deciding whether the objective is met.
6. In effect, the Tribunal impermissibly approached its task on the basis that it was not necessary to determine whether Standard A10 was met, because the Standard was no more than a gateway or precursor to consideration of the objective. In other words, the Tribunal failed to consider the requirements of with Standard A10 as a relevant matter in determining whether the design outcome was acceptable.
7. Where there are no findings as to compliance with the standard, it cannot therefore be a matter that has weighed in satisfaction concerning the objective. As a consequence the Tribunal has failed to have regard to a relevant matter.
8. The applicant submits that had the Tribunal construed Standard A10, it was bound to conclude that it applied to the parts of the building proposed to be setback between 201mm and 1 metre from side and rear boundaries. Had it done so it would have concluded that the proposal did not meet standard A10 and the manner and extent of departure might have led the Tribunal to a different decision. The errors are therefore material. To make good the materiality of the error, the applicant accepts that the construction of Standard A10, as submitted to the Tribunal, was one that the Tribunal was bound to find.[22]
9. The submission to the Tribunal as to the proper construction of Standard A10 was not directed at addressing whether the objective was met. It went to the anterior step of whether the standard applied and was met. The submission, made in response to the question of law as framed and set out at [42] of the Tribunal's reasons, outlines the following reasoning: 'building' is a defined term in s 3 of the PE Act and includes 'a structure and part of a building or a structure'. Therefore when the term 'building' is used in Standard A10, its meaning includes 'part of a building or structure'. Standard A10 (as varied by Schedule 9 of GRZ1) therefore applies to all parts of a building which are not within 200mm of a boundary, and so applies to those parts of the proposal that are more than 201mm from a side or rear boundary as applicable. By contrast Standard A11 (as varied) applies to walls (not buildings) that are built on or within 200mm of side or rear boundaries. Standards A10 and A11
10. McNee submits that Standards A10 and A11 are complementary and are to be read together, each applying to adjoining areas: A11 to a narrow band along the boundary to a width of 200mm and A10 to a parallel band between 201mm and 1000mm and beyond. That is, each applicable 'part of the building' is identified by reference to the relevant standard.
11. In the written submissions to the Tribunal McNee submitted that A10 'establishes a setback profile within which any part of a building should not encroach',[23] (save for parts of a building on or within 200mm of a boundary dealt with by A11). In oral submissions on the appeal, McNee described the interpretation of A10 as permitting construction up to 3.6 m in height between 201mm and 1 metre. Any part of a building higher than 3.6m is to be set back more than a metre from the boundary by the formula provided in Standard A10.
12. Expanding this submission, McNees submits that A10 says nothing to regulate building within 200mm of or on a boundary. Beyond that A10 sets spatial requirements for setback of 1 metre, and a greater than 1 metre distance for heights above 3.6 metres, as varied by the Schedule GRZ9. Diagram 1 sets out these matters pictorially, describing a setback profile of 3.6 metres commencing at the lot boundary. McNee submits:

Based on the picture, my submission to you is those words do not mean the standard means you have to be set back on metre at ground level and then you go up 3.6 metres. Rather, the words mean what the picture shows. It's, you need to set back one metre, plus 0.3 metres for every metre of height over 3.6 metres...[24]

Therefore, he submits that standard A10 permits construction up to 3.6 metres in height at a distance between 201 mm to one metre from a boundary. Read this way with A11 the part of the building caught by Standard A10 does not need to be detached from the wall or part of the building on the boundary.

1. The first respondent accepts that Standard A10 was a matter relevant to the Tribunal's assessment of the proposed development, but disputes that the Tribunal was bound to make a specific determination about the proper construction of the standard or the extent of non-compliance with it.
2. He submits that Standard A10, where applicable, is one method of satisfying the relevant objective of height and setback of a building. Despite assumed non-compliance, the Tribunal considered the heights and setbacks of the proposal with the weight it thought appropriate in deciding whether the proposal is an acceptable planning outcome on the amenity impact to McNee.
3. The respondent submits that the Tribunal, accepting the argument that Standard A10 applied and was not met, proceeded on the basis that it was required to, and did, decide whether it was satisfied that the objective of clause 54.04.1 was met. It did so by reference to the decision guidelines appropriate to that clause which were mandatory considerations. The reasons set out a detailed analysis of both neighbourhood character and amenity impacts upon the neighbouring property, including the impact of setback and height of new walls on or close to the boundary. Height, length and location of boundary walls and the height of the proposed building that encroaches on the setback distances in A10 were all discussed in the Tribunal's reasons for being satisfied that the proposal represented an acceptable outcome.
4. Consequently, the first respondent submits the Tribunal made no legal error in its decision, and that if error was made, it was not material to the decision. This is because the decision was one based upon an assumption that the applicant's construction of Standard A10 was correct and that A10 was applicable to those parts of the proposal that extended to 201mm from the northern boundary and were non-compliant with A10 in the way McNee contended. It is therefore a case where it 'can be affirmatively concluded that the outcome would inevitably have been the same'[25] had the Tribunal made a specific finding about the applicability and extent of non-compliance with the Standard. In any event, the Tribunal was not bound to accept the applicant's construction of A10.

1. The relevant principles were not in dispute. The applicant has to establish legal error that was material to the decision made and that, in the Court's discretion, a remedy should be granted.
2. The Tribunal, in exercising its review discretion under s 82 of the EP Act, was to have regard to relevant matters it was bound to consider.[26] Identification of the matters is to be determined by matters expressly stated in the statute and by those factors, that though not expressly stated that are determined from the subject matter, scope and purpose of the relevant statute.
3. The Planning Scheme is delegated legislation to which the principles of statutory construction apply. The task, it is said 'begins and ends' with the text of the provision.[27] Construction of the relevant provision is approached in a way that is consistent with the context and purpose of all provisions of the statute, giving effect to harmonious goals.[28]
4. In the context of provisions in a planning scheme, it is recognised that the provisions are drafted by non -lawyers for use by non -lawyers.[29] It is also clear that the Tribunal is an expert body expected to approach questions of interpretation of planning instruments without 'exotic legalism' and 'with every endeavour to deal with the substance of an application for permission to use or develop land...with maximum expedition and fairness'.[30]
5. If legal error is established, the materiality of that error is to be shown. The principles are summarised in LPDT demonstrating that the relevant question is whether there was 'a realistic possibility that the decision that was made in fact could have been different'[31] absent the error. What is sufficient to demonstrate this will vary depending on the factual circumstances and the nature of the error. In considering materiality, the division between judicial and merits review must be maintained.

1. I have concluded that the Tribunal did not misconstrue the planning scheme. In deciding that it was not necessary to consider to determine the degree of departure from Standard A10, the Tribunal accepted that the setback restrictions imposed by A10 may not be met. It proceeded on the assumption that the setbacks in A10 applied to encroachment at ground level rather than only to any encroachment that exceeded 3.6 metres in building height. This is clear from its observations in [47] of its orders and reasons. It was nevertheless satisfied that the objective of clause 54.04-1 was met.
2. I have also concluded that the Tribunal did nevertheless have regard to Standard A10 in considering whether the objective of clause 54.04-1 was met, notwithstanding it declined to answer the question of law posed. The following reasons have led me to these conclusions.
3. First, a decisionmaker is required to consider objectives, standards and guidelines as are applicable in ultimately deciding whether to grant a permit. I accept that these three matters overlap and will often require a conjunctive consideration. Compliance with a standard operates so as to deem compliance with a related objective. It is one circumstance where a conjunctive consideration is not compelled.
4. I do not accept the submission that it is necessary to make a finding about the nature and degree of non-compliance if a standard is not met. It may be that the extent of non-compliance is relevant to the impact on amenity or the neighbourhood character given the particular facts before the Tribunal. If so, it is the impact on amenity rather than the standard (and its non-compliance) that is a mandatory consideration for satisfaction as to the objective. I reject the submission that cl 54.04-1 requires a binary comparison between a design compliant with a standard, and the proposal before the planning decision maker. 'An alternative design' is a reference to a design that has been submitted and that does not meet the standard. Alternative can mean 'different' or 'offering a possibility of choice'.[32] It does not necessarily require a binary comparison. To the extent an alternative design falls to be assessed, it not an assessment against one (or more) measurable standards, it having been determined that the standard has not been met. It is an assessment of the design as against the objective considering the decision guidelines. Nothing in the provisions compels consideration of a design proposal by its degree of departure from the standard, or mandates a finding as to the degree to which it departs from the standard, in order to exercise the discretion as to whether the objective is met.
5. In any event, the Tribunal did make findings as to the degree to which the design proposal had boundary walls and setbacks that potentially encroached on the side boundary setbacks and the 5 m front façade setback in A10. Further, it did make findings as to the length and height of the boundary walls for the purpose of requirements of A11. Those findings, clearly set out the degree of departure from Standard A10 setback for both the study and for the kitchen area encroachment into the setback toward the northern boundary. As mentioned, it is apparent that the Tribunal assessed the proposition on the basis that A10 setbacks applied from ground level and considered the design proposal on this basis.
6. Also, I do not accept that the correct construction of A10 was necessary for the purpose of deciding if the objective of clause 54.04-1 was met. The competing constructions before the Tribunal were relevant only to the question of whether Standard A10 applied to some part of the two rooms constructed to the boundary as McNee submitted or did not apply at all to those rooms because A11 applied as Ball and the Council submitted. In those circumstances the Tribunal was entitled, as it did, to assume a construction whereby Standard A10 applied and was not met, and to proceed on that basis.
7. I accept Ball's submission that the Tribunal determined whether the mandatory objective of clause 54.04-1 was met on the assumption that Standard A10 had not been complied with. It did so specifically on the basis that the assumed non-compliance with A10 was because of the two sections of the building which extended from 1 metre away from a boundary to 201mm from a boundary, and then on to the boundary.[33] Two consequences flow from this approach.
8. First, as mentioned, the Tribunal's reasons did in fact consider the extent of departure from standards. Looking at the matters identified, it specifically considered the features of the extension to the boundary and the impact on the neighbouring property. A reference to the extent of non-compliance supported the conclusion that the objective was met and the finding that the outcome is acceptable. It identified the aspects of non-compliance with Standard A11 which are not contentious, including the measurements concerning the two areas that extended into a zone alongside the northern boundary in the proposal. Reasons [18] to [23] deal with the neighbourhood character and the setbacks and boundary walls. At Reasons [35] to [38], it then make findings as to neighbour amenity impact by reference to the decision guidelines concerning the boundary walls insofar as they were non-compliant with Standard A11. It assessed the rooms constructed to those boundary walls in accordance with A10 not having been met.
9. Those reasons identified impact on the neighbouring property in terms of daylight, the view from the McNee property to the new walls, and the visual impact of the proposed walls from adjoining private open space, and the impact of the height and location of the boundary walls. No separate submission was made by McNee as to loss of his amenity from the part of the rooms themselves encroaching on the setbacks set out in A10.
10. The second consequence is that, having assumed in McNee's favour that standard A10 applied as he had argued, the dispute concerning construction was unnecessary to decide. On either view, there was no strict compliance that would attract the deeming provision. If A10 applied to some part of the proposal that extended to within a metre of the boundary, as the applicant contended, it was not met because the Tribunal observed that the construction of the rooms encroached on the 1 metre setback area. In my view, the Tribunal's reasons at para [49] say no more no less than that.
11. This is sufficient to dispose of the matters in issue. I will nevertheless address the question of construction, as McNee accepted that the success of his appeal rests on the Tribunal being bound to apply his construction of Standard A10. Therefore, I will set out my conclusion on that question.
12. In my view, the pictorial demonstration of setbacks cannot override the clear words of the text of clause 54.04-01 and Standard A10. There is no reference to setbacks applying to that part of a building higher than 3.6 metres. The objective of clause 54 is to ensure height and setback from a boundary respects character and limits amenity impacts. The setback distance is described as 1 metre from the side or rear boundary with an additional distance over and above 1 metre for heights greater than 3.6 metres.
13. The diagrammatic illustration does pictorially show construction to the boundary to a height of 3.6 metres. In this it is not in accordance with the ordinary meaning of A10. The diagram, although directed at setbacks, references the wall heights described in standard A11, noting a 3.6m maximum and 3.2m average. Where a profile shown by a dotted line commences on the boundary (a point not within the contemplation of A10), the pictorial representation is addressing the maximum height of that part of the building encroaching into the area, as addressed by a combination of A10 and A11.
14. By contrast, the applicant's construction requires accepting that the relevant part of the building for the purpose of A10 is defined only as that part that is within the area between 201mm and 1000 mm of a relevant lot boundary, and that the relevant part for the purpose of A11 is only that part that is on or within 200 mm of a boundary. Part of a building, is not itself defined and while the applicant's construction is open, or arguable as the Tribunal described, it is not a construction that the Tribunal is bound to apply. Standard A11 describes 'walls'. It does not use the word building, other than to state that a building on a boundary include a building set back up to 200mm from a boundary. This definition specifically imports the definition of building into Standard A11.
15. The inclusion of this statement reinforces the respondent's submission that those parts of the building not on a boundary remain subject to the setbacks provided by A10. Where parts of the building do not traverse the 1 metre setback (or greater), standard A10 is met.[34] Where parts of a building not on or within 200mm of a boundary traverse setbacks to reach the boundary, A11 is relevant. The setback heights in A10, although not met by the proposal, have some ongoing relevance to the height of the building that extends to a boundary wall.
16. In the circumstances it is appropriate to grant leave to appeal, and order that the appeal is dismissed.

[1] For ease of reference, the applicant and first respondent will be defined by their last names in this judgement.

[2] Transcript of Proceedings, McNee v Ball (Supreme Court of Victoria, S ECI 2024 05037, Justice Forbes, 10 July 2025) 1.28-30, 4.12-23. ('T').

[3] The applicant relies upon the affidavits of Dominic Hugh Scally affirmed 25 September 2024, Christopher James Bobcock, affirmed 15 May 2025. The first respondent relies upon the affidavit of Jessica Lee Kaczmarek affirmed 16 April 2025 ('Kaczmarek Affidavit').

[5] Order of Senior Member Bill Sibonis in McNee v Stonnington CC [2024] VCAT 798 (VCAT, P1405/2023, 28 August 2024) ('VCAT order and reasons').

[7] Applicant, 'Submissions on behalf of the applicant', Submissions in McNee v Ball (Supreme Court of Victoria, S ECI 2024 05037, 15 May 2025) 3.

[9] Stonnington Planning Scheme clause 32.08-5.

[13] VCAT order and reasons [24], [28].

[14] Applicant, 'Submissions on Behalf of Bill McNee Re. Standard A10' (VCAT, P1405/2023, 21 June 2024).

[16] Applicant, 'Submissions on Behalf of Bill McNee Re. Standard A10' (VCAT, P1405/2023, 21 June 2024) [22] (emphasis added).

[17] Ibid [4]. The Tribunal recorded this as applicable "to any part of a building that is not on or within 200mm of a side or rear setback?" at paragraph [42]. In context the last word was intended to be to the boundary, as the Tribunal's reasons make clear in the discussion that follows from [43] to [51] when it was considering parts of a building extending towards a boundary.

[18] VCAT orders and reasons [43] (emphasis added).

[20] S 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'). See cases on questions of law, for example the Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72, which allows a right to come before the court to challenge the legality but not the merit of a VCAT decision.

[23] Applicant, 'Submissions on Behalf of Bill McNee Re. Standard A10' (VCAT, P1405/2023, 21 June 2024) [22].

[25] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2024] HCA 12 ('LPDT') [16].

[26] See Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 152 CLR 24.

[27] Optus Administration Pty Ltd v Saluwadana [2023] VSCA 266 at [64].

[28] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355.

[29] See Aitken Properties Pty Ltd v Hobsons Bay CC [2016] VCAT 1484, opinion by DP Dwyer on question of law, [24]-[26].

[30] Pacific Seven Pty Ltd v City of Sandringham [1982] VicRp 14; [1982] VR 157 at 162 and 163.

[32] Collin's Dictionary (online at 17 December 2025) 'alternative'.

[33] Tribunal orders and reasons [51].

[34] Or for that matter distances of more than a metre due to the height of the proposed part of the building.