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[2008] VCAT 927
appellant. The responsible authority's decision was set aside. A permit was granted and directed to be issued for development of two double-storey attached dwellings and associated vegetation removal at 87...
1 cited instrument linked from this judgment.
VCAT allowed Peter Di Bella's review and granted a permit for two attached double-storey dwellings at 87 Franklin Street, Eltham. It accepted that the proposal raised concerns about scale and appearance, but considered the area was changing and that the planning policy for this precinct particularly emphasised vegetation. The layout supported north-facing amenity and the retention of mature trees. The Tribunal required the front porches to be moved back and imposed conditions concerning landscaping, tree protection, stormwater, materials and construction. The decision is a fact-specific planning merits decision, not a general rule that similar developments must be approved.
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In Bella v Nillumbik SC [2008] VCAT 927, Peter Di Bella applied to VCAT for review of Nillumbik Shire Council's decision concerning a proposal for two double-storey attached dwellings at 87 Franklin Street, Eltham. The application also involved removal of specified vegetation. The proceeding was brought under section 79 of the , as identified in the catchwords.
The judgment records the site as being in the Residential 1 Zone and covered by Significant Landscape Overlay Schedule 3, or SLO3. It identifies the neighbourhood-character policy at Clause 22.12 and places the site in Bush Garden Precinct 3. The order states that the Council decision was set aside and a permit was granted, subject to endorsed plans and permit conditions.
The Council's main concern was that the development did not respond appropriately to neighbourhood character. Its objections included the proposal's appearance from the street, front setback, height and size, excavation, landscaping opportunities, and the extent of driveways and crossovers (Basis of Decision, [1]). The applicant's planning submission focused particularly on neighbourhood character and included photographs of newer developments in the same Bush Garden Precinct (Basis of Decision, [2]).
The Tribunal's central factual observation was that the street's established character was changing. It acknowledged that dwellings had been modest in size and low in scale, but observed that owners were modernising or extending them, or replacing them with larger dwellings and medium-density development (Basis of Decision, [3]). The site was also close to and within walking distance of the Eltham activity centre and nearby mixed-use activity.
The permit was not an unconditional approval of the plans as originally submitted. The Tribunal agreed with Council that the porch was unduly prominent, because it sat forward of the elevated ground-floor façade and because of its height. It required the porches to be moved a further 1.8 metres from the frontage, along with related changes to the front doors, stair landings, planters and stairs (Basis of Decision, [3]; Appendix, amended-plan requirement).
Other permit conditions addressed tree protection, landscaping, driveways, drainage, stormwater retention, building materials and commencement and completion time limits. The order therefore reflects a decision to permit the development in a modified and conditioned form.
The Tribunal did not treat neighbourhood character as requiring the existing built form to remain unchanged. It stated: “Neighbourhood character policy is not designed to maintain the status quo or prevent evolutionary change” (Basis of Decision, [3]). It explained that residential areas change, and that the age of existing dwellings does not, by itself, mean their established character cannot alter.
That statement was applied in the context of evidence that redevelopment was already occurring. It did not mean that any larger or denser proposal would necessarily be acceptable. Rather, the Tribunal considered whether this proposal would be so discordant in this particular neighbourhood that it should be refused. Its final conclusion was that it would not, given the area was undergoing evolutionary change and older, modestly sized dwellings were reaching the end of their functional lives (Basis of Decision, [4]).
The Tribunal also read the relevant neighbourhood-character policy as having a particular emphasis. It noted that Clause 22.12-5 described key characteristics, preferred future character, design objectives and design responses for Bush Garden Precinct 3. Unlike other precincts, it found that the design objectives and responses, except for fencing, related to vegetation, rather than building design, colours, car storage or accessways (Basis of Decision, [3]). That observation shaped the weight it gave to landscape outcomes.
The layout was important to the Tribunal's assessment. It considered the side-by-side design suitable for a north-facing lot because it provided good amenity to north-facing living areas, reduced the amount of hard surfacing required for driveways, provided secluded north-facing open space and, particularly in this case, enabled the retention of mature native trees near the northern boundary (Basis of Decision, [3]). These were specific benefits of the submitted layout, not a general endorsement of attached dwellings.
The Tribunal also assessed height and excavation. It considered that the slope allowed the building to fit below the 10-metre ResCode standard for sloping sites. Although the building exceeded the 7.5-metre height that triggered a permit under SLO3, the Tribunal noted that only a relatively small section of the pitched roof exceeded that height and that no walls did (Basis of Decision, [3]). The decision does not set out a general test for these controls; it records how the Member assessed this proposal.
Landscaping offered a further reason to accept the development. Council considered the front-setback landscaping area small. The Tribunal was satisfied that the central area was wide enough for canopy trees and taller shrubs, and that side setbacks and landscaping areas near the front would also provide opportunities. It anticipated that the site might initially appear bare, but considered that it had the potential to develop a bush-garden character over five to ten years (Basis of Decision, [3]). The permit's amended landscape plan required taller shrubs and screening plants in the front setback, a specified tree substitution and irrigation details. Conditions also required protection of retained trees and completion and maintenance of the approved landscaping.
The result followed an express balancing exercise. The Member stated that planning decision-making requires a balancing of often competing objectives and policies, then concluded that the development would not be so discordant in a neighbourhood undergoing change (Basis of Decision, [4]). The porch amendment shows that this balancing did not involve accepting every design feature as submitted.
The judgment records an application of the planning scheme and the planning controls applicable to this site. It does not purport to amend those controls or announce a new statutory test. The material provisions identified in the judgment are section 79 of the Planning and Environment Act 1987, Clause 22.12, SLO3 and the stated ResCode height standard for sloping sites.
Before the decision, Council opposed the proposal on neighbourhood-character and related design grounds. The decision states that, under section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998, a failure to make a decision is deemed to be a decision to refuse the application. That footnote explains the procedural basis for review where the authority has not decided the application. The judgment does not give a broader discussion of that provision.
After review, VCAT set aside the responsible authority's decision and directed that the permit issue. The practical legal result was a permit subject to the approved plans and the conditions in the Appendix. Those included amendments to the porch design, tree-protection requirements, landscaping requirements, access and drainage controls, stormwater retention tanks, and limits on reflective materials.
The decision's discussion of evolutionary change is relevant to its reasoning, but should be kept in its factual setting. It does not say that neighbourhood character is irrelevant or that redevelopment should always prevail over existing character. The Member considered the established low-scale character, the area's actual change, the precinct's vegetation-focused policy objectives, and the proposal's specific design and landscape features together.
No broader “before and after” doctrinal change can be established from this judgment alone. The provided text contains no later decisions, statutory amendments, or commentary explaining whether the decision has been followed or limited.
The Tribunal said: “Neighbourhood character policy is not designed to maintain the status quo or prevent evolutionary change” (Basis of Decision, [3]). In plain English, the Member treated existing buildings as important context, but not as an automatic reason to prevent change. The reasoning depended on the finding that the area was already changing and on the particular policy and design facts.
The decision says that the relevant precinct's design objectives and responses were, except for fencing, related to vegetation rather than building design, colours, car storage or accessways (Basis of Decision, [3]). In plain English, the Member read the policy as directing substantial attention to vegetation. That did not remove the need to assess the buildings or access. It helps explain why the Tribunal considered landscaping and tree retention central to the proposal's fit with the precinct.
The Member described the side-by-side layout as providing “very high amenity” for north-facing living areas, reducing driveway hard surfacing, creating secluded north-facing open space, and allowing mature native trees near the northern boundary to be retained (Basis of Decision, [3]). In plain English, the Tribunal considered the layout to have site-specific benefits that supported its planning assessment.
On the front setback, the Tribunal was satisfied the central area could accommodate canopy trees and taller shrubs, while side setbacks and nearby landscaping areas offered additional planting opportunities (Basis of Decision, [3]). It recognised that the site could initially seem bare, but anticipated that it could develop a bush-garden character over time. The landscape conditions were therefore part of the practical basis for the decision, rather than incidental details.
The Member also accepted one of Council's design concerns. The porch was “unduly prominent” because of its position and height, and the permit required it to be moved a further 1.8 metres from the frontage (Basis of Decision, [3]; Appendix). In plain English, the Tribunal did not simply dismiss the Council's concerns. It treated the porch design as needing a specific amendment before development proceeded under the permit.
Finally, the Member said that decision-making involves “a balancing of often competing objectives and policies” (Basis of Decision, [4]). The outcome illustrates that method: the Tribunal weighed neighbourhood change, landscape objectives, amenity, tree retention, building form and street presentation, then granted a permit with changes and conditions.
The decision is most relevant as an example where a planning merits assessment concerns redevelopment in a residential area with an identified neighbourhood-character policy and landscape overlay. Its reasoning may be informative where the decision-maker must assess whether existing low-scale housing is a fixed benchmark or part of a neighbourhood undergoing change.
The closest factual features are the ones the Tribunal relied on: the site's location near an activity centre; evidence of newer and larger development in the same precinct; a north-facing lot; a layout said to support amenity and reduce driveway surfacing; mature native trees capable of retention; and landscape-policy objectives focused substantially on vegetation. The decision also involved a building that exceeded an overlay permit-trigger height in a limited roof area, while remaining below the cited ResCode standard for a sloping site.
The porch amendment is relevant to fact patterns in which a proposal may be acceptable overall but a discrete design element is considered too prominent. The decision shows that VCAT dealt with that concern through a condition requiring amended plans, rather than treating it as a reason to refuse the whole proposal.
The decision is not a general precedent for granting permission to two attached dwellings, for accepting buildings of a particular height, or for disregarding neighbourhood character. Its outcome was tied to the specific policy wording, site conditions, surrounding development and conditions. The text does not provide enough information to apply those factual findings to a different site or planning scheme.
The material provided contains the judgment itself and does not identify any later decisions that have applied, followed, distinguished, criticised or overruled it. It is therefore not possible to state from this source how later courts or tribunals have treated Bella.
The judgment also cites no other cases in its reasons. Its reasoning is grounded in the planning scheme provisions and the evidence and submissions described in the decision. Any account of subsequent treatment would require later legal sources not included here. This analysis does not infer that the decision remains good law, has been followed, or has any particular precedential weight beyond what the judgment itself establishes.
The judgment does not set out the full application documents, detailed plans, Council's complete submission or the full wording of the relevant planning scheme provisions. It says these materials were on the Tribunal file and refers generally to them. As a result, the decision's account is enough to explain the Member's stated reasoning, but not to reconstruct every planning control or item of evidence that may have been before VCAT.
The reasons identify the permit trigger under SLO3 and the 10-metre ResCode standard, but do not give a detailed legal analysis of how those provisions interact. The Member's conclusion is a site-specific assessment of the limited roof area above 7.5 metres and the building's height on sloping land.
The decision also predicts that the site could develop a bush-garden character over five to ten years. The text does not provide later evidence of whether that landscaping occurred or whether the prediction was borne out. The permit conditions required an amended landscape plan and ongoing maintenance, but the judgment does not address enforcement or compliance.
Finally, the judgment does not explain the weight assigned to each planning objective in numerical or formulaic terms. It describes an overall balancing exercise and records the conclusion. Questions about the current wording of the controls, subsequent amendments, later treatment of the decision, and the application of the same considerations to another proposal cannot be resolved from this judgment alone.
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Nillumbik Planning Scheme; Application pursuant to Section 79 of the Planning and Environment Act 1987; Residential 1 Zone; Significant Landscape Overlay (SLO3); 2 double storey attached dwellings; Neighbourhood character; Front setback; Retention of trees; Landscaping.
Bella v Nillumbik SC [2008] VCAT 927
in accordance with the endorsed plans and subject to the permit conditions set out in the Appendix to these orders.
Such modifications must be to the satisfaction of the Responsible Authority and when approved, will be endorsed and form part of this permit.
Unless works have already been shown on endorsed plans within the periphery, the zone for each tree must be marked to extend to at least around the periphery of the foliage canopy to include the drip line of each tree. If works are shown on the endorsed plan within the periphery, then the TPZ must be taken in to only the minimum amount necessary to allow the works to be completed. All tree protection fencing required by this permit must be erected in accordance with the approved TPZ.
Stormwater from the driveways must be collected using 225mm wide trench-grates across the driveway at street frontage and directed, via an underground drain to an on-site device.
The nominated point of discharge is the Council drainage pit located in the roadway adjacent to the frontage of the development site.
An on-site detention device is to be installed, at no cost to Council, to restrict the property discharge to a flow equivalent to the pre-development design flow rate as approved by the Responsible Authority.
[1] In accordance with Section 4 (2) (d) of the _Victorian Civil and Administrative Tribunal Ac_t 1998 a failure to make a decision is deemed to be a decision to refuse the application.
Bella
Nillumbik SC [2008] VCAT 927
The responsible authority's decision was set aside. A permit was granted and directed to be issued for development of two double-storey attached dwellings and associated vegetation removal at 87 Franklin Street, Eltham, in accordance with endorsed plans and subject to the permit conditions in the Appendix.