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[2001] VCAT 290
appellant. The Tribunal set aside the Responsible Authority's decision and granted a permit for two additional dwellings, fencing and alterations at 16 Derby Street Richmond, generally in accordance with...
VCAT allowed Bomburgh's review, setting aside Yarra Council's refusal to permit two additional single-storey flats and associated works at 16 Derby Street, Richmond. The Tribunal found the additions were not overdevelopment, were acceptable in heritage/street appearance terms (limited street visibility and sympathetic design), and that on-site parking and access were adequate in context. Concerns about privacy, open space and construction impacts were addressed by permit conditions. The Tribunal directed the Responsible Authority to issue the permit subject to conditions.
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Bomburgh Properties applied for planning permission to add two single-storey one-bedroom dwellings to an existing two-storey, 14-flat complex at 16 Derby Street, Richmond. The site is approximately 1,200 square metres, abuts Derby Street and Rooneys Lane (providing vehicle access), and is within a Residential 1 zone and Heritage Overlay (Richmond Hill Precinct - HO332) [3]–[6], [10]. Council refused the permit on grounds of overdevelopment, inconsistency with heritage guidelines and the Municipal Strategic Statement (MSS), inadequate on-site car parking, and incompatibility with Council's policy limiting small-scale infill residential development [Grounds of Refusal].
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The applicant sought review in the Victorian Civil and Administrative Tribunal under s77 of the Planning and Environment Act. At the VCAT hearing the Tribunal member A. J. Quirk considered written and oral submissions from the applicant, the Responsible Authority (City of Yarra), and objectors represented by Mr Greg Van Rooyen. The Tribunal accepted that the original proposal had been amended to two dwellings (from three) by amended plans dated 1 August 2000, and that notice was given to objectors on those plans [3]. The Tribunal ultimately set aside the Responsible Authority's decision and ordered that a permit be issued, subject to detailed conditions addressing screening, fencing height, materials, landscaping and construction management, and directed the Responsible Authority to issue a permit under s85(1)(b) of the Act [Decision; Conditions 1–12].
The Tribunal's reasoning centred on several inter-related factual and planning-policy evaluations.
Intensity versus numerical density. The Tribunal emphasised that the practical intensity of development on the site was more relevant than adherence to a numerical density guideline. The Tribunal compared the existing density (1:86 sqm), the proposed density (1:75 sqm) and the Good Design Guide guideline (1:200 sqm), and concluded that the numerical comparison alone was of 'little consequence' to the merits decision in this inner-urban context [16]–[17]. The Tribunal found intensity and context, not simply arithmetic, should drive the assessment.
Heritage and streetscape impact. The Tribunal accepted that the proposed architectural style differed from the Victorian/Edwardian housing nearby and acknowledged the proposal was at variance with neighbouring heritage character [19]. However, it identified that the parts of the proposal visible from the street were limited (principally the west elevation), and those visible elements had been designed to pick up local features (for example, a pitched roof). On that basis the Tribunal concluded that the visible addition was 'respectful' of heritage places and neighbourhood character and did not justify refusal [19].
Overdevelopment and bulk. The Tribunal found the two new single-storey units did not materially increase building bulk, did not occupy existing car-parking areas, and in some views would even reduce perceived bulk by cutting down sight lines to the second storey. Accordingly, usual overdevelopment criteria did not apply, and the Tribunal rejected the Responsible Authority's overdevelopment concern [25].
Parking and access pragmatism. A key contested issue was parking. The Tribunal acknowledged some parking spaces would be difficult to access and that the layout might not meet Australian Standards for parking; it contrasted how the car park would function as a public car park versus a private car park for occupiers [26]. The Tribunal accepted evidence of local parking controls (two-hour limits, resident parking permits) and ABS car ownership rates supplied by the applicant's adviser, concluding that 15 on-site spaces for 16 flats was acceptable in context [29]–[30]. The Tribunal adopted a pragmatic view that occupiers could manage private arrangements (reversing and shuffling) and that the proposal did not create an unworkable parking situation [26], [30].
Mitigation by conditions. For issues including privacy (overlooking), landscaping and construction impacts the Tribunal required conditions (screening of windows, landscaping plan with semi-mature trees, construction management plan) and found these mitigations sufficient to meet concerns about privacy, open space and neighbourhood amenity [1], [5], [23]–[24], [31].
Taken together these findings led the Tribunal to set aside Council's refusal and grant the permit, directing the Responsible Authority to issue it subject to conditions.
Before this decision, the law governing planning merits in VCAT was well settled: the Tribunal assesses planning applications on their merits against the planning scheme, including zone provisions, overlays, local policy and design guidelines. The Good Design Guide and heritage overlays were established inputs into assessment. The Tribunal's decision in Bomburgh Prop Vic Pty Ltd v Yarra CC illustrates and reaffirms several practical points rather than altering legal doctrine.
What the decision reinforces:
After the decision the practice of contextual, pragmatic assessment, balancing planning controls with site-specific realities and the capacity to mitigate with conditions, is confirmed. The decision does not overrule or change legislative requirements; it exemplifies VCAT's merits-review discretion within the planning framework.
Passage: "The present density is 1:86 metres. The proposed density is 1:75 sq. metres. The guideline density in the Good Design Guide is 1:200 sq metres." [16] Plain English: The site already has a much higher density than the Good Design Guide suggests, and the new proposal only slightly increases that density. The Tribunal will not allow the Guide's figure to be treated as an absolute bar in an inner-city context.
Passage: "This is another application where the intensity of development on the site is more applicable than any density provision." [17] Plain English: How heavily the site is actually used and how the buildings look and behave on the land matters more than just a numerical ratio of dwellings to land area.
Passage: "The only part of the new proposal that can be seen from any street is the west elevation... the proposed addition facing Derby Street is in my opinion respectful of the heritage places and the neighbourhood character." [19] Plain English: Even though the design differs from neighbouring old houses, the part you can see from the road has been designed to fit in, so it does not harm the streetscape.
Passage: "The two new units are not taking up any area of the existing car park... I don't think any of the usual criteria for overdevelopment apply here." [25] Plain English: The additions do not remove parking or significantly increase building mass, so they do not meet the tests that normally justify a refusal for overdevelopment.
Passage: "If this was a public car park it just would not work. However, it is not and, consequently, the occupiers of units themselves can work out satisfactory parking arrangements... the parking can be made to work." [26] Plain English: The car park design might be unacceptable for a public facility, but for residents who manage their own spaces and can adapt, it is usable; practical arrangements by occupiers can make the layout acceptable.
This decision is fact-sensitive, but the reasoning will be instructive where similar conditions arise:
If a proposed development meets several of these facts, Bomburgh provides persuasive support for a pragmatic merits assessment and the use of conditions to manage impacts.
This decision is a VCAT member's merits decision rather than a higher court ruling. It is therefore directly authoritative within the Tribunal as a persuasive precedent in similar fact patterns, not a binding judicial precedent in the same way as a Court of Appeal or Supreme Court judgment would be. In the decision itself the member distinguished a contemporaneous VCAT decision (Nisbett v Boroondara) as not relevant to the facts before him, demonstrating careful attention to factual differences and limits of precedential reach [14]. Practitioners should therefore treat Bomburgh as persuasive Tribunal reasoning for cases involving small infill in heritage areas, parking pragmatism, and the contextual evaluation of density and intensity. Later Tribunal panels confronted with like fact patterns are likely to cite Bomburgh for the points that intensity/context can outweigh strict density figures and that private parking layouts may be acceptable where local conditions and occupancy patterns permit; however the precise outcome will turn on differences in visibility, heritage sensitivity, parking access and amenity impacts.
Weight to numerical density versus intensity in borderline cases. Bomburgh favours intensity/context over numerical density in inner-urban locations [16]–[17]. It remains an open question how tribunals will reconcile this approach with schemes or policies that include stronger, quantified density controls, or where a council relies on a clear numerical standard in its MSS or local policy.
The limits of pragmatic parking tolerance. Bomburgh accepts parking that does not comply with Australian Standards where private arrangements and local restrictions ameliorate concerns [26], [29]–[30]. The boundaries of that tolerance are not sharply drawn: different site constraints, more severe access problems, or higher expected car ownership might lead a tribunal to refuse where Bomburgh approved. Subsequent decisions will determine how far this pragmatic approach extends.
Heritage assessment centred on visible effect. The Tribunal focused on the street-visible elevation's respectful design [19]. Questions remain about development that significantly affects the rear or side context of heritage precincts, or where cumulative incremental changes from rear or lane-side additions alter precinct character over time. Bomburgh does not fully resolve how cumulative, non-streetfront changes should be weighted.
Reliance on ABS statistical evidence for car ownership. The Tribunal accepted ABS figures supplied by the applicant [30]. There is scope for dispute about the evidentiary sufficiency and sampling relevance of such statistics in particular localities, and whether more granular occupant profiling should be required.
The role of precedent within VCAT's merits review. Bomburgh distinguishes other VCAT decisions where facts and administrative circumstances differ [14]. The decision highlights the importance of precise factual distinctions; however, it leaves open how strongly Tribunal panels must follow prior decisions on comparable facts rather than treating them as persuasive.
Practitioners should therefore apply Bomburgh's pragmatic, contextual approach where appropriate, but remain alert to the factual sensitivities that can produce different outcomes.
Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit.
The order of the Tribunal is that the decision of the Responsible Authority is set aside.
A permit is granted for 2 additional dwellings, fencing and alterations and additions at 16 Derby Street, Richmond generally in accordance with the endorsed plans and subject to the following conditions:
1. Before the use and/or development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the application plans, but modified to show:
(a) Screening of the existing east facing living room and bedroom windows of Flats 9 and 10, and the north facing living room and bedroom windows of Flat 8 to prevent overlooking of adjoining sites to the satisfaction of the Responsible Authority.
(b) The proposed front fence of the new dwelling adjacent to Derby Street having a maximum height of 1.2m; and,
(c) A schedule of all proposed materials, colours and finishes.
2. All development must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.
3. This permit will expire if the use or development is not commenced within two years from the date of this permit. All development must be completed within 2 years from the date of commencement. The Responsible Authority may approve extensions to these time limits if requests are made within 3 months of expiry.
4. Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7 am - 6 pm, Monday-Friday (excluding public holidays) and 9 am - 5 pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.
5. Before the use and/or development starts, landscape plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The landscape plan must show the location, quantity and maturity of all proposed plants, the botanical names of plants, the location of all areas to be covered by lawn or other surface materials and provide a specification of works to be undertaken prior to planting. The landscape plan must include provision for the planting of semi-mature trees around the periphery of the site to minimise the impact of the existing and proposed buildings, when viewed from adjoining sites and Derby Street, to the satisfaction of the Responsible Authority.
6. Landscaping must be carried out in accordance with the endorsed Landscaping Plan and maintained to the satisfaction of the Responsible Authority.
7. Before construction commences, a construction management plan must be prepared by the Applicant, and approved to the satisfaction of the Responsible Authority. When approved, the construction management plan will be endorsed and will then form part of the permit. The construction management plan must be implemented to the satisfaction of the Responsible Authority, and must include the following elements:
(a) details of delivery and collection points for construction materials;
(b) provision for off-street car parking by construction workers during all phases of the construction; and,
(c) details of an appropriate 24 hour contact person.
8. During the construction phase of the development, the following conditions must be met:
(a) only clean rainwater shall be discharged to the stormwater drainage system;
(b) stormwater drainage system protection measures shall be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system;
(c) vehicle borne material from the premises shall not accumulate on the roads abutting the site;
(d) all machinery and equipment must be cleaned (if required) on site and not on adjacent footpaths or roads;
(e) correct fencing is to be fitted and installed so as to ensure safe access for pedestrians; and,
(f) all litter (including items such as cement bags, food packaging and plastic strapping) must be contained.
9. A building permit must be obtained before development is commenced.
10. This site is subject to a Heritage Overlay pursuant to the Yarra Planning Scheme. Unless hereby approved, a planning permit is required for any demolition, re-painting or other external alterations, sandblasting, exterior works (including the installation of external air conditioning units) to an existing building or buildings, construction of a building or fence, changes to the natural topography of the land or the subdivision or consolidation of land.
11. The site must be drained to the legal point of discharge to the satisfaction of the Responsible Authority.
12. In accordance with Council policy, a 5% public open space contribution will apply in the even of subdivision of the land.
The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.
Mr Matt Gorman, Town Planner for the Responsible Authority.
Mr John Cicero of Best Hooper Solicitors for the Applicant.
2. Contrary to Guidelines for Heritage Places and MSS Heritage Conservation strategies.
4. Inconsistent with Council MSS which seeks to limit smaller scale infill residential development within established residential areas.
* They believe that there is not an overdevelopment of the site;
* The works are not contrary to Guidelines for Heritage Places and MSS Conservation strategies.
* The proposal is consistent with Council MSS which seeks to limit small scale infill residential development within established residential areas.
1. This is an application to review a decision of the City of Yarra which refused to issue a permit for two extra dwellings as additions to an existing group of flats at 16 Derby Street, Richmond.
2. At the commencement of the hearing Mr Gorman made application for the permit to include fencing because it is a heritage area. There was no objection to this and this was permitted under Schedule 1 Clause 64 of the Victorian Civil and Administrative Tribunal Act.
3. Mr Gorman's description of this seems quite appropriate and it states that:
"The original proposal submitted with the application included three additional dwellings. However this was superseded by amended plans lodged with the City of Yarra on 1 August 2000. Notice of the amended plans was given to all objectors and Council subsequently made its determination on the basis of the 1 August 2000 plans.
The proposal is for the construction of two (additional) dwellings, alterations and additions to existing dwellings, and associated works.
1) The two new dwellings are located adjacent to the respective north-eastern and north-western corners of the site. The new dwellings are to each be one storey, to have one bedroom and ground level private open space. The proposed north-eastern dwelling is to be constructed in part to the eastern boundary of the site (with a wall height averaging approximately 3.2m). The proposed density is 1 dwelling/75 sqm of site.
2) Landscaping is to be provided adjacent to ground level flats and also in the car park at rear. A total of 15 car spaces is to be provided on site. New screens - to prevent overlooking - are to be provided in front of first floor, east elevation, living room windows of two existing flats. A new garbage enclosure to be constructed adjacent to the Derby Street frontage. The exterior of the existing flats is to be rendered."
4. I have also adopted Mr Gorman's description of these where he states that:
"The site abuts the eastern ends of Derby Street and Rooneys Lane, Richmond.
The site is rectangular, with a length of approximately 48m and a width of approximately 25m. The area of the site is approximately 1200 sqm.
The site is developed with a two-storey, building, constructed in the early 1970s, in four portions around a central courtyard. The building contains fourteen flats, all of which, except two, have one bedroom.
There are a number of existing large, first floor, habitable room windows from which overlooking into adjoining residential properties, particularly to the east and north, occurs.
There is an existing fourteen space car park, in the southern part of the site.
The land is within a predominantly residential area.
Derby Street is approximately 50m long and 9m wide. Derby Street is a "no through road". Rooneys Lane is a 3m wide "rear" lane of similar length.
Surrounding land is predominantly residential. The site abuts the rear of a number of sites, which front Derby Street, Rogers Street and Rowena Parade. The majority of buildings in the area were constructed in the Victorian era; however the built form of Rogers Street is characterised by a small group of five, almost-identical, single-storey, weatherboard, 1940s houses with hipped roofs, along its southern side. There is an approximately 10m high industrial building abutting Rooneys Lane and the southern boundary of the site."
5. In addition to this description Mr Cicero advised that one side of Derby Street is composed only of fences and garages as the dwellings to which these are pertinent face another street i.e Rowena Parade.
6. The site is zoned Residential 1 and it is covered by Heritage Overlay (Richmond Hill Precinct - HO332). Under Clause 32.01-4 of the scheme a permit is required to construct two or more dwellings on a lot. This clause also brings into operation the Good Design Guide for Medium Density Housing.
7. Since amendment C17 to the planning scheme was approved there are local variations to the Good Design Guide enforced in the City of Yarra. These have removed the 7 km distance of the GPO guideline and affects Element CEI.T17 and a number of parts of Element 6 of the Good Design Guide. Under Clause 43.01 of the scheme a permit is required to construct, externally alter or demolish a building and to construct and/or carry out works in a Heritage Overlay.
8. Clause 22.02 of the scheme is a local policy requiring to be had for the Development Guidelines for Heritage Places.
9. Clause 21.05-2 indicates that the urban character study should be taken into account when making decisions in relation to residential development. I was advised that the site is within the Richmond Hill South character area which has a desired character of Victorian and Edwardian streetscapes.
10. The Richmond Conservation Study is also applicable and this states that all the buildings in Derby Street with the exception of the subject site are graded D, of local significance.
11. The Council also has a car parking policy that is applicable to this application.
12. Following receipt of the application the responsible authority required it to be advertised and this generated 11 objections. The grounds of objection are listed in Mr Gorman's submission and I don't intend to repeat them. Mr Gorman's submission lists the areas where the objectors have real concern and these are:
13. As usual more than sufficient information was provided by the parties to the hearing including written submissions, photographs, plans and also reference documents in relation to the local planning policies. These are retained on the Tribunal file.
14. Mr Gorman in admitting that the responsible authority had overturned the officer's decision indicated that there was plenty of precedent for that. In support of this he quoted Nisbett v Boroondara City Council (2000) VCAT 927 (30 April 2000). Having read the quotation from that decision in Mr Gorman's submission I don't see its relevance to this decision. Here the responsible authority overturned a recommendation for refusal and granted a permit, whereas here the opposite occurred and for vastly different reasons.
15. This is a modern (in comparison to Victorian/Edwardian) building that has undergone refurbishment. The 14 existing flats are contained in the two storey section. The two proposed flats are single storey.
16. The lot has a narrow frontage to the end of Derby Street and also a connection via a right of way called Rooneys Lane to Alfred Street. It is via this right of way that the vehicle access is provided to the site. I must say I had a lot of problems with the responsible authority's submission and the conclusions drawn from that by Mr Gorman on things such as density. This is because the existing density is of little consequence in this determination. The present density is 1:86 metres. The proposed density is 1:75 sq. metres. The guideline density in the Good Design Guide is 1:200 sq metres.
17. This is another application where the intensity of development on the site is more applicable than any density provision.
18. This is already an intense development but it is not unusual to see such intensive developments within close proximity of the Central Business District and the excellent shopping strips for which Richmond is renowned including Victoria Street, Bridge Road and Swan Street. In this context it is not out of character in the wider neighbourhood.
19. I agree with Mr Van Rooyen's submission that the proposal is at variance with the heritage character of the neighbouring dwellings, but I also agree with Mr Cicero that it is a vastly different architectural style from those existing buildings. But this is not going to change its architectural features and in fact the only part of the new proposal that can be seen from any street is the west elevation which has picked up a number of features, including a pitched roof, of the existing Edwardian/Victorian housing. From this point of view the proposed addition facing Derby Street is in my opinion respectful of the heritage places and the neighbourhood character.
20. In relation to overshadowing of neighbouring properties, it is not at all usual to consider shadow diagrams from single storey dwellings or additions and consequently I don't intend to do that.
21. In relation to infill development, to use a major criterion of the local planning policy. I don't know if it is really applicable in this case. Mr Cicero had difficulty with this as he said there is no definition of small scale infill residential development in the planning scheme and his assumption was that "it is probably directed towards ensuring that infill development in existing established areas is not of a scale which over powers existing streetscape or character." Not having any other guidance I accept and adopt Mr Cicero's conclusions. I also agree with him that if this proposal is considered to be infill development then it is not of a scale threatening the streetscape or the general character of the area. These are two small single bedroom flats.
22. The objectors were concerned about acoustic privacy, particularly in relation to the front bedrooms of 14 and 12 Derby Street. Tribunals often refer to "cheek by jowl" living in the inner suburbs and this is an example of that. Even in suburbia it is not unusual to hear noises from adjacent houses, in particular toilets flushing, noises from stereos, TVs etc. I believe that it is very difficult to drown all noises.
23. In relation to landscaping I am confident that the upgrading of the whole area of the existing development will provide a better result than that which presently exists. I am very conscious that this proposal has a very small window to the street. The lot is constrained by surrounding development. The proposal to landscape the site is in my opinion an excellent one.
24. The objectors were concerned about the loss of open space on the site. However, the spaces provided for the two new units are acceptable.
25. I think by far the greatest concerns are in relation to parking and vehicular access and overdevelopment. The fact is that the two new units are not taking up any area of the existing car park. They do not add significantly to the bulk of the building and from some aspects would reduce the overall bulk of the building by cutting down site lines to the second storey. I don't think any of the usual criteria for overdevelopment apply here. The biggest issue then is that of parking.
26. The plan shows 15 spaces to be provided for 16 flats. It was argued by both Council and Mr Van Rooyen that a number of these spaces would be difficult to access. I don't disagree with this. If this was a public car park it just would not work. However, it is not and, consequently, the occupiers of units themselves can work out satisfactory parking arrangements. It appears that a number of these spaces have already been sold with units but that the rest will not be. That is a sound decision by the people marketing the project. I understand that these spaces do not comply with the Australian Standard for Parking but then nor do a lot of municipal parking lots. I think the parking can be made to work. People may have to do a little reversing and shuffling but this becomes part of the price they pay if they want to live there.
27. The access is via a narrow right of way, however, it seems to have worked for years and I don't see why it will not continue to do so. This then leaves me to consider the overall number of spaces on the site.
28. The objectors were concerned that because the existing building has been refurbished it will be more desirable for people who may have more than one car in their family unit. That may be so but there again that is something for the body corporate to sort out. It may be that the extra cars will have to be garaged off site in commercial parking areas. It seems that Derby Street in particular does not have any available parking spaces because of its narrowness and the fact that the houses fronting Derby Street don't have any easy access to garages themselves.
29. I am told there is a two hour limitation on parking in Derby Street and that also there are residents' parking permits available. The site has frontage to Derby Street and like all other residences having frontage to Derby Street should be able to obtain at least one resident parking space and therefore 16 spaces in total would be supplied for 16 units.
30. Mr Cicero provided statistics from the Australian Bureau of Statistics that indicated the average car ownership per unit was around 0.5 per unit and 85% of which could be around 0.8 per unit viz a total of 13 spaces would need to be provided. I find that the 15 spaces provided are satisfactory.
31. While Mr Gorman argued against his fellow officer's recommendation to the responsible authority, having read this I am prepared to accept the general thrust of it, because the officer was trying to obtain a better outcome for the neighbourhood overall and had recommended that the overlooking of existing properties could be reduced as part and parcel of this overall proposal. A permit will issue subject to conditions.
32. In relation to the conditions Mr Gorman was advised that the Tribunal is not prepared to place notes on a permit. Mr Cicero was concerned about condition 7 requiring a construction management plan, in particular the details of work schedules which are not any business of the Council however condition 4 adequately covers times of working and therefore condition 7(a) has been taken out of the proposed conditions. As for the rest they seem to be acceptable.
Bomburgh Prop Vic Pty Ltd
Yarra CC [2001] VCAT 290
The Tribunal set aside the Responsible Authority's decision and granted a permit for two additional dwellings, fencing and alterations at 16 Derby Street Richmond, generally in accordance with endorsed plans, subject to specified conditions; Responsible Authority directed to issue permit under s85(1)(b) of the Planning and Environment Act.