//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2003] VCAT 1176
appellant. The Tribunal varied the decision of the Responsible Authority and directed, pursuant to s85(1)(e) of the Planning and Environment Act 1987, that Permit No. PL01/1329 must not contain Conditions...
The permit holder sought review of several permit conditions (limit on building height, deletion of a third-level terrace and balustrade, and an upper-level setback) imposed by Yarra City Council for redevelopment of a factory/warehouse at 375 George Street, Fitzroy. VCAT (Senior Member Sharkey) found the proposed three-storey, 9.8m building, the balustrade/terrace and the setback were not unacceptable or detrimental to the streetscape or heritage precinct and that the specific conditions were unnecessary or unwarranted. The Tribunal allowed the review and varied the permit by deleting those conditions and re-wording Condition 1 (Reasons [15]–[18]; Order).
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,597 words · generated 31/07/2026
This is an application by the permit holder under section 80 of the Planning and Environment Act 1987 seeking review of certain conditions imposed by the Responsible Authority (Yarra City Council) on Permit No. PL01/1329 (Reasons [1], [10]–[11]). The development proposal was to reconstruct the existing single-storey factory/warehouse, retain the ground-level envelope and add two additional storeys above, resulting in a three-storey building of about 9.8 metres in height, with warehousing, meeting space, a four-car rear garage, front setback parking and rooftop plant (applicant's description in Reasons [2]). The land is in a Business 3 Zone and subject to Heritage Overlay 334; a permit was required for buildings and works and for warehouse use (Reasons [6]–[7]).
1 cited instrument linked from this judgment.
The Council imposed a series of amended-plan conditions; the permit holder challenged several: primarily Condition 1(a) limiting the overall maximum height to match the adjoining southern building, Conditions 1(c) and 1(d) requiring deletion of a third-level balustrade and terrace, and Condition 1(f) requiring a 4-metre setback from the west boundary wall at an upper level (Reasons [10]–[11]). At hearing, the Council relied on policy aiming for integration with the existing streetscape and the view that the southern two-storey building provided a suitable benchmark; Council also referred to advice from its Heritage Adviser (Reasons [12]). The objector was the owner of the adjoining northern property and raised concerns about glass bricks on the shared boundary and future development restrictions (Reasons [13]). VCAT (Senior Member G.J. Sharkey) allowed the review and ordered the permit varied so that the challenged conditions were removed; the Tribunal found they were unnecessary or unwarranted in context (Reasons [15]–[18]; Order).
The Tribunal's reasoning concentrates on the practical impact of the challenged conditions relative to the local context and statutory planning controls.
On height (Condition 1(a)), the applicant had proposed a three-storey, 9.8-metre building with roughly 3-metre floor-to-ceiling heights. The applicant emphasised comparable multi-storey warehouse conversions nearby. The Council relied on policy promoting integration with existing streetscape and sought to use the southern two-storey building as a benchmark (Reasons [12], [15]). The Tribunal's conclusion was that the proposed height would not be "unacceptable in the streetscape or having regard to the Heritage Overlay" (Reasons [15]). On that basis the height reduction condition was unnecessary.
On the third-level balustrade and terrace (Conditions 1(c) and 1(d)), Council argued that contemporary balconies are discouraged in heritage precincts and can appear alien where the street edge is consistent. The applicant countered that parapets and similar elements are common. The Tribunal found the balustrade and terrace would not be "detrimental to the streetscape or in heritage terms" and so the deletion conditions were not justified (Reasons [16]).
On the setback (Condition 1(f)), there was some uncertainty whether Council intended that to apply to the second or third level. The applicant suggested it should be the third level; regardless, the Tribunal considered whether a 4-metre setback was needed given the right-of-way and neighbouring dwelling to the west. The Tribunal concluded the setback requirement was not "necessary or warranted" in the context (Reasons [17]).
The Tribunal applied the planning scheme context and weighed policy preferences against the practical consequences and local built form; where a condition was not shown to be necessary to protect streetscape or heritage values or proportionate to those objectives, the Tribunal removed it (Reasons [12], [15]–[17], [18]).
This decision is an instance of VCAT exercising its established s80 review jurisdiction and its power under s85(1)(e) to vary a permit (Reasons [1]; Order). It does not purport to change or create new legal doctrine. Instead it exemplifies the Tribunal's application of statutory powers to assess the necessity and proportionality of permit conditions in the planning context, with particular attention to heritage overlay considerations and streetscape integration (Reasons [6]–[7], [12], [15]–[17]).
Before this decision, the legal framework for review and variation of permit conditions under the Planning and Environment Act 1987 and the role of planning scheme policies and overlays was already established. After this decision, the practical effect is narrower: this Tribunal decision records an outcome in which particular conditions (height cap, deletion of terrace/balustrade, and a specified setback) were not supported by the Tribunal on the facts before it. The decision is fact-specific and applies the ordinary planning review approach rather than announcing a change to the law.
Reasons [12]: The Responsible Authority's view is quoted: "It is considered that the application in its current form does not satisfy the policy and the associated objectives which actively encourage integration with the existing streetscape." Plain English: Council relied on planning policy that typically looks for new buildings to fit in with the scale and character of the street; the Council judged the applicant's plans as not meeting that objective.
Reasons [15]: The Tribunal says: "I do not consider that what is proposed would be unacceptable in the streetscape or having regard to the Heritage Overlay." Plain English: The Tribunal examined the visual and heritage effect of the proposed building and decided it would not harm the street appearance or heritage values, so reducing the building's height wasn't necessary.
Reasons [16]: The Tribunal states: "I do not consider that the balustrade or terrace at third level would be detrimental to the streetscape or in heritage terms." Plain English: The Tribunal did not see the rooftop terrace or its balustrade as visually harmful or inconsistent with heritage considerations; therefore deleting them was not required.
Reasons [17]: The Tribunal notes: "Whether it was intended to refer to the third level or the second level I do not consider that it is necessary or warranted having regard to the context of the area." Plain English: Regardless of which level the Council meant, the Tribunal found the 4-metre setback requirement was not justified given the circumstances.
Reasons [18] / Order: The Tribunal formally allows the application and varies the permit to remove the challenged conditions. Plain English: The applicant won the review and the permit was modified to eliminate the specific conditions contested.
This decision is relevant where:
A permit applicant challenges conditions imposing height limits, deletion of terraces/balconies, or significant setbacks on the grounds that such conditions are not necessary to protect streetscape or heritage values; and
The local context includes industrial/commercial buildings, proximate taller conversions, or a heritage precinct where the planning authority asserts integration objectives; and
The Tribunal is asked to weigh Council's policy preference against the practical visual impact and built form context.
In short, cases where Council imposes conditions justified primarily by general streetscape/heritage policy, and the permit holder demonstrates that the particular design will not cause the harm the condition seeks to prevent, will attract the Tribunal's close factual scrutiny along the lines seen in this decision (Reasons [12], [15]–[17]).
This decision itself does not cite later treatment by courts or other tribunals, nor does it purport to establish a new legal test. The judgment does not discuss subsequent cases (the decision is self-contained and fact-based). To determine how later courts and tribunals have treated Buttons v Yarra CC [2003] VCAT 1176, one must consult subsequent reported decisions and planning tribunal compilations or databases. The present judgment provides a factual application of established s80/s85 powers rather than a landmark precedent that redefines legal principles.
The judgment leaves several practical and doctrinal matters that would be open to contest on different facts:
Degree of deference to council heritage advice: Council placed weight on its Heritage Adviser's recommendations (Reasons [12]); the Tribunal accepted those recommendations did not justify the challenged conditions on these facts. The extent to which tribunal members should defer to heritage advisers on comparable facts remains fact-sensitive.
Benchmarks for "integration" and when a neighbouring building may be an appropriate height benchmark: Council relied on the southern two-storey building as a benchmark (Reasons [12]); the Tribunal rejected importation of that benchmark here. How a Tribunal weighs competing benchmarks depends on the specific locality and built form examples.
The meaning of "necessary or warranted": The Tribunal's finding that conditions were not necessary or warranted is a qualitative assessment tied to local context. Different factual matrices, including closer proximity to sensitive heritage fabric or more distinctive heritage streetscapes, could produce the opposite result.
Ambiguity in permit drafting and administrative clarity: The uncertainty whether Condition 1(f) meant the second or third level raised a drafting and clarity issue (Reasons [17]). This underscores the practical importance of precise drafting in permit conditions.
Interaction with neighbour rights and future development: The objector sought assurance that glass bricks on a shared boundary would not impede future works at 377/379 George Street (Reasons [13]). The Tribunal's decision on the permit conditions does not resolve private property concerns about future development rights or party wall issues.
Practitioners should note that the Tribunal's outcome is closely tied to the particular facts presented in the materials and to the way the Council framed its policy concerns; different evidence or a different built context could lead to a different result.
This analysis summarises and explains the Tribunal's reasons in Buttons v Yarra CC [2003] VCAT 1176. It is general legal information, not legal advice. I can make mistakes. Before you act on, rely on, or use any part of this analysis or any draft arising from it, get a qualified Australian lawyer to check it.
PLANNING AND ENVIRONMENT LIST VCAT Reference: P1069/2003
Planning, Factory/warehouse, Part demolition, Additions, First and second storeys, Business 3 Zone, Heritage Overlay 334, Permit, Conditions, Application for Review, Allowed
MEDIUM NEUTRAL CITATION: [2003] VCAT 1176
It is ordered that the decision of the Responsible Authority is varied and it is directed, pursuant to Section 85(1)(e) of the Planning and Environment Act 1987, that Permit No. PL01/1329 must not contain Conditions 1(a), 1(b), 1(d) and 1(e), and Condition 1 must read:
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) The length of the garage to the rear to be at least 10.3 metres;
(b) The service units to be located away from street view, to the satisfaction of the Responsible Authority;
(c) All first and second floor windows to the west elevation to have sill heights of 1.7 metres or have obscure glass to 1.7 metres above floor level, to the satisfaction of the Responsible Authority;
(e) A schedule of all external materials and finishes shall be submitted to the satisfaction of the Responsible Authority prior to the commencement of buildings and works on the land. The schedule shall show the materials, colour and finish of all external walls, roof, fascias, window frames, glazing types, doors, fences, paving (including car park surfacing), outbuildings and structures.
For the Responsible Authority: Ms L Dowsey, Principal Planner
1. This is an application under Section 80 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Holder for review of conditions in a permit which the Yarra City Council ("the Responsible Authority") has issued to him.
2. Mr Waldon, in his written submission for the Applicant for Review/Permit Holder, described the proposal as follows:
It is intended to effectively rebuild the building in a similar envelope at ground level and add two (2) additional storeys above. The following are details about the proposal:
* The new building would be constructed to three (3) storeys and to both side boundaries;
* The building will be setback 5.53m at ground level to provide for two (2) car spaces in the front setback area as existing;
* A four (4) car garage is provided to the rear at ground level and would be accessible via a roller door to the rear laneway;
* Fenestration is generally to be facing the street or the rear laneway - initial plans provided for glass block windows facing north as light sources, however, these are now deleted in favour of skylights at the upper level;
* A hoist is provided between ground and first floor levels for the movement of goods;
* Two stairwells are provided in satisfaction of building requirements, but also to provide easier access between levels at both the front and rear;
* The height of the building would be 9.8m, however, the upper level will be substantially recessed from the street frontage;
* Materials will include rendered masonry walls and aluminium doors and windows;
* Plant and equipment would be stored on a terrace at the upper floor level.
* The ground floor area of 144.7sqm would be used as a factory, office and sales as presently;
* The first floor area of 254.93sqm would be used for warehouse and storage;
* The second floor area of 201.29sqm would be used in part as a meeting/conference area, a staff amenity area and for storage."
3. The subject land is on the west side of George Street between Argyle Street and Johnston Street. There is a right-of-way abutting the rear boundary which is accessed from Argyle Street.
5. Ms Dowsey, in her written submission for the Responsible Authority, described the development on the subject land and surrounding development as follows:
"The subject site is presently occupied by a single storey factory/warehouse which is approximately 3m in height and is built to the three boundaries with a setback of approximately 55m from the George Street, Fitzroy frontage. The single storey factory building contains a mezzanine area which contains the warehouse component and goods hoist associated with the operation of the business. Both levels of the building contain toilets with the ground floor also having tea making facilities. A crossover occupies the width of the frontage of the site with two (2) spaces located to the front of the site accessed from George Street, Fitzroy. To the rear of the site is a roller door which is elevated from ground level and is most likely to be used for the unloading of goods. Car access is not available from the rear.
The immediately surrounding area is characterised by commercial and industrial uses with the western side of George Street, Fitzroy and west of the rear right of way comprising two and single storey buildings. Development located on the eastern side of George Street, Fitzroy consists of predominantly single and two storey commercial and industrial buildings with some 3 storey and 4 storey office buildings located to the south east of the subject site.
To the west is a right of way which fully constructed with bluestone and is 4 metres wide. Beyond the Right of way is a single storey dwelling which fronts Argyle Street, Fitzroy.
The subject site is well serviced by public transport and located within proximity to Johnston Street, Fitzroy.
The adjoining land to the north of the subject site, at 379 George Street, Fitzroy comprises a single storey cream brick factory/warehouse the building occupies the total site area with car access available via two crossovers located on George Street, Fitzroy to a roller doors. The overall height of this existing building as shown on the applicants plans dated 17 June 2002 is approximately 5m as measured from ground level.
The adjoining property to the south, at 371 George Street, Fitzroy comprises a two storey office building which contains undercroft car parking accessed from George Street, Fitzroy. The subject building is shown on the applicants plans dated 17 June 2002 at a height of approximately 8m as measured from ground level.
The property to the west of the right of way is known as 166 Argyle Street, Fitzroy and comprises a single storey brick dwelling.
Located on the opposite side of the subject site is No. 368 to 374 George Street, Fitzroy which comprises buildings which are used for commercial purpose."
6. The subject land is covered by the Yarra Planning Scheme and is in a Business 3 Zone which is the subject of Clause 34.03. A permit is required for use as a warehouse, pursuant to the Table at Clause 34.03-1, because the subject land is within 30 metres of a Mixed Use Zone. A permit is required for buildings and works pursuant to Clause 34.03-4.
7. The subject land is covered by Heritage Overlay 334 (HO334), Fitzroy South Precinct, pursuant to the Schedule to Clause 43.01, Heritage Overlay. A permit is required to construct a building, to construct or carry out works, and for demolition, pursuant to Clause 42.01-2. External paint controls apply pursuant to the Schedule.
8. Clause 52.06, Car parking, applies to the proposal. Clause 52.06-1 provides that the Table at Clause 52.06-5 sets out the number of car spaces required for various uses. A permit may be granted to reduce or to waive the number of car spaces required by the Table, pursuant to Clause 52.06-1. Ms Dowsey submitted that for the proposed additional floor area of 406 square metres of warehouse a requirement of six car spaces would apply pursuant to the Table, but the development proposal provides for four additional car spaces. The Responsible Authority considered that the total of six car spaces that would be provided would be acceptable.
10. The Conditions that are the subject of this Application for Review are:
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) The overall maximum height of the building to be reduced to the height of the adjoining building to the south and to the satisfaction of the Responsible Authority;
(c) The balustrade to the third level to be deleted;
(d) The terrace at third level to be deleted and replaced with roof (non trafficable area);
(f) The second level to be setback 4 metres from the west boundary wall;
1. Condition 1(a) requiring a the height being limited to the same as a neighbouring building is unnecessary, and has no legitimate planning, urban design or heritage grounds.
2. Condition 1(c) and 1(d) requiring deletion of the 3rd level terrace and balustrade is unnecessary, a poor streetscape response and reduces the amenity of the development.
3. Condition 1(f) needs clarification as we submit it should read third level and not second level.
12. Ms Dowsey assessed the proposal against the relevant planning policies and submitted:
"It is considered that the application in its current form does not satisfy the policy and the associated objectives which actively encourage integration with the existing streetscape. It is acknowledged that the existing building is not considered to be significant in the precinct however, by virtue of the citation of the precinct in the planning scheme and the contributing nature of all buildings located within the precinct it is considered Council requested amendment to the plan will ensure the proposed development conform with the overall scale of the two adjoining buildings located to the north and south of the subject site.
Council has considered the taller two storey structure located to the south as the bench mark of a satisfactory overall height for the building with an additional set back requirement to ensure the building also correlates with the adjoining structure located to the north. The setback of the upper level from the west boundary will also further integrate the building with the dwelling located to the west of the rear Right of Way. Council's Heritage Adviser has also recommended this course of action as detailed in her referral response and contained in this report.
It is also further reiterated that the applicant accepted these Conditions prior to the application being placed on notification and requested that they be placed on the planning permit as amended plan requirements."
13. Ms R Lowin, a Respondent/Objector and the owner of 379 George Street, submitted in a Statement of Grounds:
"Our objection is that we know that the 3 storey building will have glass bricks placed on the "shared" boundary wall.
We need written assurance that this will not in any way prevent us from renovating - extending our building in the future, should we need to add any floors, ie 377 and 379 George Street."
14. It is noted that Permit 1(h) in the permit requires windows on the north boundary to be deleted, and this condition was not the subject of the Application for Review.
15. It was the submission of Mr Waldon that the proposal is for an overall height of 9.8 metres with approximately 3 metre floor to ceiling heights. He submitted that this was not excessive for industrial development or in the context of the area, and that there are other warehouse conversions with four storeys, six storeys and even eight storeys. A reduction in the height as required by Condition 1(a) would probably reduce the proposal from three storeys to two storeys. I do not consider that what is proposed would be unacceptable in the streetscape or having regard to the Heritage Overlay.
16. Ms Dowsey submitted that policy discourages contemporary balconies and the higher section of new upper storey addition should be hidden from the street. She also submitted that the Responsible Authority discourages balconies and terrace areas in location of heritage precincts, and they are considered to be alien structures when in a built environment which contains a consistent hard edge to the street. Mr Waldon on the other hand submitted that parapets are common on Victorian and more contemporary buildings within the same zoned area and more prevalent than pitched or gabled roof forms. I do not consider that the balustrade or terrace at third level would be detrimental to the streetscape or in heritage terms.
17. This would require that the second level be set back 4 metres from the west boundary wall. Mr Waldon submitted that this condition was intended to refer to the third level. Whether it was intended to refer to the third level or the second level I do not consider that it is necessary or warranted having regard to the context of the area.
18. For the above reasons this application is allowed, and it is appropriate that Permit No. PL01/1329 not contain the conditions that were the subject of the Application for Review. The remaining parts of Condition 1 should be renumbered.
Buttons
Yarra CC [2003] VCAT 1176
The Tribunal varied the decision of the Responsible Authority and directed, pursuant to s85(1)(e) of the Planning and Environment Act 1987, that Permit No. PL01/1329 must not contain Conditions 1(a), 1(b), 1(d) and 1(e), and that Condition 1 be redrafted to require amended plans showing specified modifications, including garage length, service unit location, window sill heights/obscure glazing, deletion of north-boundary windows and an external materials schedule (Order). The application was allowed (Reasons [18]; Order).