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[2001] VCAT 1413
appellant. Application for Review allowed; Responsible Authority directed to issue a permit for three two-storey dwellings in accordance with amended plans tabled at the VCAT hearing and subject to ten...
VCAT allowed an application for three two-storey dwellings at 2 Carool Road, Ashburton, overturning Council's refusal. The Tribunal found local policy encouraging higher density near activity centres, the site's immediate context (adjacent commercial uses and recent two-storey developments), and a prior permit for two dwellings justified departures from some guideline setbacks and made the proposal an appropriate response. A permit was ordered subject to amended plans and conditions addressing plans, drainage, landscaping and time limits.
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1,693 words · generated 28/06/2026
Ross Bradshaw sought a permit to develop 2 Carool Road, Ashburton, for three two‑storey dwellings. The site is a 780 m2 lot with an 18.29 metre frontage to Carool Road, a rear sewer easement and a roughly 2.9 metre fall across the site [3]. It sits immediately north of the Ashburton Shopping Centre and about 50–70 metres from Ashburton Railway Station [4], [6]. Council refused the application (Application No. BOR/00/00814), and the matter proceeded to an Application for Review at the Victorian Civil and Administrative Tribunal pursuant to s79 of the Planning and Environment Act 1987. Member P.G. O'Leary heard the matter on 15 June 2001 and allowed the review, directing Council to issue a permit for the three two‑storey dwellings in accordance with amended plans and subject to ten conditions (order dated 15 June 2001).
1 cited instrument linked from this judgment.
At the hearing the applicant tabled revised plans which reduced part of the first floor areas, increased garage dimensions, added eaves and fencing, provided additional landscaping and made other layout changes intended to reduce bulk, improve access and address streetscape concerns [12]. The Tribunal had before it the planning controls, local policy (including the Good Design Guide for Medium Density Housing and Boroondara's Neighbourhood Character policy), the Council Urban Designer's assessment, photographs, locality plans and the prior permit history, including a previous permit for two two‑storey dwellings on the site [11], [14], [15(ii)].
The central contested matters were front and side setbacks, neighbourhood character response, whether the proposal amounted to overdevelopment, and impacts on adjoining properties, notably No. 4 Carool Road [13]. The Tribunal concluded the proposal was an appropriate response to the site and locality, allowed the review and directed the permit with conditions [15].
Three primary strands underpin the Tribunal's decision:
Policy direction favouring increased density at activity centres: The Tribunal emphasised that the local planning policy clearly and unambiguously encourages higher density residential development in and around commercial centres and strategic locations, and treated Ashburton Shopping Centre as an activity centre for these purposes [15(i)]. That policy imperative weighed in favour of permitting a higher density outcome at this site.
Site context and prior approvals: The Tribunal gave significant weight to the site's context, immediate adjacency to commercial rear lots, a public car park, the KFC building with a 2 metre setback and a nearby dual occupancy two‑storey development, and to the fact that Council had previously granted a permit for two two‑storey dwellings on the site [15(ii), (iii), (v)]. These facts reduced the perceived leap from existing conditions to the proposed three‑unit development and supported a conclusion that amenity impacts could be managed.
Design modifications and function: The revised plans included changes that reduced upper‑level bulk marginally, added visible eaves and improved garage/entry orientation to face the laneway. The Tribunal accepted that garage placement, unit orientation (northern orientation for Dwellings 2 and 3), landscaped setbacks and the relatively modest differences from prior approvals would mitigate adverse impacts, and that a 5.2 metre front setback and 1.6 metre side setback were acceptable in the specific context despite being less than recommended guideline figures [12], [15(iii)–(v)].
The Tribunal therefore applied the planning scheme and guidelines flexibly, giving practical effect to the strategic policy promoting density at activity centres, while testing the proposal for tangible amenity effects and requiring design measures and conditions to manage those effects.
Before this decision, the applicable planning controls and guidance included the Residential 1 Zone (Clause 32.01-4), the Good Design Guide for Medium Density Housing (which includes recommended setback standards), and local policy including Clause 21.07‑3 Neighbourhood Character and the Boroondara Residential Urban Character Study (Character Area 151) [7]–[10]. Those instruments pull in two directions: the neighbourhood character policy seeks to ensure development respects local amenity and character, while other parts of the scheme and explicit MSS policy promote increased housing density near activity centres.
Bradshaw Ross v Boroondara CC is an example of the Tribunal prioritising the strategic policy objective of increased housing density at the edge of an activity centre over a strict application of guideline setback figures where the immediate physical context and prior approvals supported that approach. The decision does not change legal doctrine; rather it illustrates how tribunals may reconcile competing provisions in the planning scheme by weighing strategic policy and local context against guideline recommendations. Practitioners should therefore expect that edge‑of‑centre sites and rear‑of‑shop interfaces will be assessed with a strong eye to the strategic objective of intensification, and not merely to guideline numeric standards.
Quoted Tribunal passage [15(i)]: "The policy contained in Clause 22.07-3 of the Boroondara Planning Scheme clearly and unambiguously encourages higher density residential development in and around commercial centres and other strategic locations. The Ashburton Shopping Centre would clearly meet the definition of an activity centre."
Quoted Tribunal passage [15(iii)]: "With regard to setbacks, the 5.2 metre setback from the front is adequate in the context of this location. Whilst it is less than the 6 metre setback recommended in the Good Design Guide, it is considered a reasonable transition given the location of the KFC building... and the recently constructed two storey building at No. 1 Carool Road."
Quoted Tribunal passage [15(iv)]: "The 1.6 metre setback from the southern boundary is acceptable... The 1.6 metre setback proposed will comfortably accommodate pedestrian paving and access to Dwellings 2 and 3."
Quoted Tribunal passage [15(ii)]: "The Responsible Authority had previously issued a permit for 2 two storey dwellings on the site. It had already addressed issues relating to the impact of two storey dwellings in the rear yard of adjoining properties."
Quoted Urban Designer passage [14]: "Based on Council's approval of a previous design... which addressed the lane as a primary frontage, it is considered that this proposal can be supported in principle, from a streetscape point of view."
This decision is most persuasive where the following factual matrix exists:
When this pattern is present, tribunals are likely to weigh strategic densification policy and contextual realities more heavily than strict adherence to guideline setback numbers.
This decision is an administrative tribunal decision from VCAT and operates as persuasive authority rather than binding precedent. It illustrates a commonly applied approach: balancing scheme objectives that promote intensification near activity centres against neighbourhood character and design guidelines. Subsequent VCAT panels frequently follow the same methodology, evaluating policy hierarchy and site context, rather than elevating the Good Design Guide to a rigid rule. Practitioners should treat Bradshaw Ross as a useful example of that balancing exercise in a locality experiencing change, but must research later, directly on‑point VCAT or court decisions for binding principles in other localities and factual circumstances.
Conclusion: Bradshaw Ross v Boroondara CC is a practical application of planning law principles at the interface of residential and commercial zones. It demonstrates that VCAT will give considerable weight to scheme objectives promoting density near activity centres and to contextual, design‑based solutions that manage amenity impacts. Practitioners should draw from it when presenting or opposing medium density proposals at similar interfaces, ensuring the local context, prior approvals and detailed design measures are clearly evidenced.
Medium density housing, 3 two storey dwellings, Policy encourages medium density close to activity centre, Setbacks, Character
2. The Responsible Authority is directed to issue a permit for 3 two storey dwellings in accordance with plans by Clarke Hopkins and Clarke Architect tabled at VCAT Hearing 15.06.01 (but amended in accordance with Condition 1) and subject to the following conditions:
1. Before the use and/or 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 (3) copies provided, generally in accordance with the plans substituted with the application, but modified to show illumination along the pedestrian footing abutting the right-of-way.
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. All access driveways, parking areas and other areas shall be properly graded and drained by the provisions of inlet or grading pits and connected to the household drainage system and to the legal point of discharge in accordance with Council's standards and to the satisfaction of the Responsible Authority. The driveway. is to be edged to prevent run off to the adjoining properties.
4. 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
5. No buildings or works are to be constructed over any easement or other restriction on the land or any sewers, drains, pipes, wires or cables under the control of a public authority without the prior written consent of the relevant authority of the Responsible Authority.
6. Before the use and/or development starts (or at a later date approved by the Responsible Authority in writing) a landscape plan prepared by a suitably qualified and experienced person or firm incorporating:
a) A survey of all existing vegetation and natural features;
c) A schedule of all proposed trees, shrubs and ground cover, which will include the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified.
d) Paving, retaining walls, fence design details and other landscape works including areas of cut and fill;
Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority before occupation of the development and/or commencement of the use.
7. All landscaping works shown on the endorsed landscape plans must be maintained to the satisfaction of the Responsible Authority and any dead, diseased or damaged plant replaced.
8.. Any construction of a new vehicular crossover or the alteration, reinstatement or addition to an existing vehicle crossover must be in accordance with Council's standard details. A Council supervision permit is required for this work.
9. Redundant vehicle crossings must be removed and the nature strip and channel reinstated to council standards. A Council supervision. permit is required for this work.
a) The development does not start within two years of the date of this permit; or
b) The development is not completed within two years of the date of commencement.
The Responsible Authority may extend the times referred to if a request is made in writing before the permit expires or within three months afterwards.
Mr. L. Rigoni, Town Planner, represented the Responsible Authority.
Mr. N. Hooper, Town Planner, represented the Applicant for Review.REASONS
1. This is an Application for Review pursuant to Section 79 of the Planning and Environment Act 1987 against the decision of Boroondara City Council to refuse Application No. BOR/00/00814 for 3 two storey dwellings on a lot.
2. It is proposed to develop the site for 3 two storey dwellings. The amended plans as tabled at the review hearing showed each dwelling would comprise living, meals, kitchen, entry and double car garage at ground floor level. First floor level would comprise three bedrooms, ensuite and bathroom. Dwelling 1 would also have a balcony facing Carool Road. The design of the dwellings enables each double car garage to have access to a right-of-way situated to the south of the subject property.
3. The subject site has a frontage of 18.29 metres to Carool Road, a length of 42.67 metres, and a land area of 780 square metres. A 1.8 metre wide sewerage easement runs along the rear western boundary of the site. The site has a change in level of about 2.9 metres from east to west.
4. The site is located about 50 metres north of High Street immediately north of land comprising the Ashburton Shopping Centre.
5. Adjoining properties comprise a single storey detached house to the north at No. 4 Carool Road, a two storey dual occupancy to the east (opposite at No. 1 Carool Road) and a KFC restaurant and takeaway food premises to the south at the corner of High Street and Carool Road. Various other shops and commercial premises facing High Street Road and a public car park to the west situated behind commercial premises in Welfare Parade.
6. The Tribunal was told that the site is located some 50 - 70 metres from the Ashburton Railway Station and is also diagonally opposite the Ashburton Primary School. The Tribunal was also told that properties at Nos. 5, 7 and 9 Welfare Parade are currently being developed for 9 two storey (attic) dwellings approved by the Tribunal in January 2001 (Application No. 2000/074413). The Tribunal was also told of various other applications for permit for new development in and around the intersection of Welfare Parade and Fakenham Road located nearby.
7. The subject site is zoned Residential 1 under the Boroondara Planning Scheme. A permit is required to develop more than one dwelling on a lot pursuant to Clause 32.01-4 of the Planning Scheme. This clause also requires assessment of the proposal pursuant to the provisions of the Good Design Guide for Medium Density Housing.
* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
* To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.
9. There are various local planning controls and policies of relevance in this application. This includes Clause 21.07-3 (of the MSS) referring to Neighbourhood Character Policy. This policy seeks, inter alia, to ensure the siting and design of medium density housing enhances and respects the amenity of surrounding development, including to:
* Maintain and increase housing choice and diversity within existing residential areas.
* Increase residential development opportunities (including higher density development) in and around commercial centres and other strategic locations.
* Protect existing housing stock and residential uses.
* Encourage a high standard of residential development.
10. There are other clauses in the Planning Scheme of relevance which include:
* Boroondara Residential Urban Character Study (1996) - Character Area No. 151.
11. At the review hearing both parties tabled and read from detailed written submissions. The Tribunal was provided with an array of photographs of the subject site, surrounding properties and a the neighbourhood in general, locality plans, zoning plans, details of the previous approvals for the site, and a copy of Neighbourhood Character Statement for Character Area 151.
12. At the commencement of the hearing Mr. Hooper sought leave to table revised layout plans and elevations. He advised that the plans had been pre-circulated to all parties and he explained the purpose of the revisions. These revisions included:
* The first floor component of each dwelling has been reduced by between 2-5 square metres, thereby increasing the break between Units 2 and 3 from 2 to 3 metres
* The garages have been increased in length to 6 metres
* The garage for Unit 1 has been widened to improve the storage arrangements for that dwelling
* Bollards have been added along the footpath along the southern boundary
* The entry feature to Units 2 and 3 removed, with the front door re-oriented
* A fence has been included to fully enclose the open space for Unit 1
* The Unit 1 front facade has been setback further (in part)
* The ground floor eaves of Unit 1 have been extended around the northern facade and the western facade
* A fence has been added in front of the entrances to Units 2 and 3
13. The Tribunal does not propose to go into any detail about the arguments submitted by both parties suffice to say the primary issues related to:
* The adequacy or otherwise of a 5 metre setback from the front of the property.
* The adequacy or otherwise of a 1.6 metre setback from the side (laneway).
* Whether the form of development adequately responded to the character of the area.
* Whether the site represented an overdevelopment.
14. The Tribunal however considers it is appropriate to quote the Council's Urban Designer's assessment of the proposal. It stated:
"Based on Council's approval of a previous design, albeit at a lesser density than which is now proposed, which addressed the lane as a primary frontage, it is considered that this proposal can be supported in principle, from a streetscape point of view.
Given the site's context on the periphery of an activity centre (Ashburton Shopping Centre), there is some logic in assuming that the site can accommodate a higher density than what would be expected of a similar sized site in a typical residential street.
However, whilst the density may be acceptable, the visible bulk of three box-like two-storey dwellings and the resultant mass of the side elevation facing the main road frontage will be a significant detraction in the street. It is suggested that, at a minimum, the upper levels, particularly to Carool Road frontage, be reduced in area, to reduce the overall visible bulk of the development. At the same time the design forms could be adjusted to include visible eaves. A glance at the new unit development opposite this site may give some hint to an appropriate response."
15. At the conclusion of the hearing, the Tribunal upheld the Application for Review and directed the issuance of a permit in accordance with the revised plans and subject to ten conditions. Its oral reasons however, for the benefit of all parties, are as follows:
(i) The policy contained in Clause 22.07-3 of the Boroondara Planning Scheme clearly and unambiguously encourages higher density residential development in and around commercial centres and other strategic locations. The Ashburton Shopping Centre would clearly meet the definition of an activity centre.
(ii) The Responsible Authority had previously issued a permit for 2 two storey dwellings on the site. It had already addressed issues relating to the impact of two storey dwellings in the rear yard of adjoining properties.
(iii) With regard to setbacks, the 5.2 metre setback from the front is adequate in the context of this location. Whilst it is less than the 6 metre setback recommended in the Good Design Guide, it is considered a reasonable transition given the location of the KFC building situated at the corner of High Street and Carool Road (which is only set back 2 metres) and the recently constructed two storey building (which forms part of a dual occupancy development) at No. 1 Carool Road.
(iv) The 1.6 metre setback from the southern boundary is acceptable. It is noted that the previous approved development contained two storey built form which was set back between 1.2 metres and 1.8 metres respectively. The 1.6 metre setback proposed will comfortably accommodate pedestrian paving and access to Dwellings 2 and 3.
(v) The Tribunal also notes the land to the south abutting the right-of-way comprises the rear of the KFC restaurant/takeaway premises and other commercial premises. The Tribunal notes that Dwellings 2 and 3 have a northern orientation (which is appropriate) so that the garaging for the dwellings and entry way faces towards the laneway. This appears to be an appropriate design response given the site context.
(vi) Whilst it would not be common to allow two storey dwellings down the axis of a residential site in a normal residential street, in this case adjoining properties comprise a public car park and the rear ends of shops and other commercial premises. Whilst there may be some impact on the rear yard of No. 4 Carool Road, the Tribunal notes the house in question is oriented to the west and north. In addition the size, shape and setbacks of Dwellings 2 and 3 ensures the impact on the open space of No. 4 Carool Road is diminished. This impact will be further reduced by landscaping in the yards of each of the new dwellings.
(vii) The Tribunal notes part of the Character Area 151 is, and has, undergone change since the Character Study was prepared. This is never more evident along Welfare Parade and this part of Carool Road close to or on the interface with the shopping centre. The form of development is an appropriate response to the local conditions.
Bradshaw Ross
Boroondara CC [2001] VCAT 1413
Application for Review allowed; Responsible Authority directed to issue a permit for three two-storey dwellings in accordance with amended plans tabled at the VCAT hearing and subject to ten specified conditions including amended plans, drainage, landscaping and time limits (Order dated 15 June 2001).