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[2001] VCAT 1433
appellant. Application for Review allowed; permit granted for a two-lot subdivision at 96 Rathmines Road Hawthorn East subject to conditions including amended plans endorsed to the satisfaction of the...
The Tribunal allowed the review of a failure to determine a permit application to subdivide 96 Rathmines Road into two residential lots. The Tribunal found the lot sizes acceptable, concluded that access and amenity concerns could be remedied by permit conditions (including requiring the laneway to be upgraded to a trafficable standard and driveway design for forward entry/exit), rejected the need for a three-dimensional building envelope, and declined to impose a public open space contribution. The Responsible Authority was directed to issue a permit subject to specified conditions.
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1,692 words · generated 10/09/2026
This is a VCAT Planning List review under Section 79 of the Planning and Environment Act 1987 of a failure by Boroondara City Council to determine a subdivision application for 96 Rathmines Road, Hawthorn East. The permit applicant (J.M. Carvill) sought to subdivide a single parcel of 1,296 square metres in an L-shaped configuration into two residential lots: Lot 1 (fronting Rathmines Road, 573 sqm) retaining the existing dwelling, and Lot 2 (to the rear, 723 sqm) without direct frontage to Rathmines Road and relying on a right-of-way on the western boundary for vehicle and pedestrian access (see Reasons [3]-[4]).
2 cited instruments linked from this judgment.
The Council did not make a decision within the statutory timeframe and a review was lodged with VCAT. Objectors (including M. Nettleship and neighbours in Stanley Avenue and Lingwell Road) raised concerns about amenity impacts from use of the unmade right-of-way (laneway), loss of privacy, noise, inadequate turning space, personal safety, and the absence of a building envelope. The Responsible Authority prepared a draft Notice of Refusal (reported to VCAT as informing its grounds if no review had been lodged) that listed, among other matters, insufficient information, detrimental amenity impact, prejudice to proper future planning, lack of sense of address for Lot 2, and inappropriateness of sole use of the laneway (see Reasons [10], [13]-[18]).
VCAT Member G.J. Sharkey heard submissions on 7 May 2001 and, after assessing the evidence and the Responsible Authority’s draft conditions, allowed the Application for Review. The Tribunal granted a permit for the two-lot subdivision subject to conditions addressing amended plans, internal driveway design (forward access/egress), laneway construction and lighting, construction of the right-of-way to a trafficable standard at the owner’s cost, engineering computations and checking fees, services agreements, easements and referrals under the Subdivision Act, and standard commencement/completion timing conditions (Order and Conditions; Reasons [21]-[36], [37]).
The Tribunal’s decision rests on three interlocking findings:
Lot sizes and zone context: The Tribunal accepted that Lot 1 (573 sqm) and Lot 2 (723 sqm) are, by usual standards, adequate residential lots in a Residential 1 Zone and that Lot 1 did not create difficulties (Reasons [21]). The zone’s decision guidelines and VicCode 1 were relevant but did not dictate refusal.
Remediability of access and amenity concerns: The Tribunal acknowledged access difficulties for Lot 2 (no frontage; reliance on narrow, unmade right-of-way) and objectors’ legitimate amenity concerns (noise, privacy, potential damage to adjoining properties). However, it concluded these difficulties were “not insurmountable” and could be addressed by enforceable permit conditions, particularly conditions requiring the internal driveway to allow forward access and egress, construction of the right-of-way to a trafficable standard at the owner’s cost, laneway construction details and lighting, and services agreements (Reasons [21], [24], [26]-[27], [30]).
Building envelope unnecessary in context: Council sought a three-dimensional building envelope to give certainty about future development. The Tribunal concluded that imposing such a condition was neither necessary nor appropriate given the site’s circumstances, the lot sizes, and the regulatory controls already applicable to development in a Residential 1 Zone (Reasons [23]). The Tribunal was concerned that imposing a building envelope was unnecessary when standard planning controls and future permit processes would regulate dwelling siting, design and amenity impacts.
On balance, the Tribunal found that permitting the subdivision subject to carefully framed conditions would achieve an acceptable planning outcome that mitigated the risks identified by objectors and the Responsible Authority.
Before this decision (as presented in the Reasons), the controlling framework was:
After this decision, the practical state is that VCAT will consider the adequacy of lots and practicality of access and amenity in the context of applicable planning controls, and it will impose conditions to render a subdivision acceptable where legitimate concerns can be addressed by conditions rather than by a straight refusal. The case illustrates that an absence of a building envelope will not automatically require refusal where other controls and lot sizes provide sufficient regulation and where conditions can pragmatically manage impacts.
Note: This is a single Tribunal decision; it applies to the facts before VCAT and demonstrates the Tribunal’s approach to remediable access and amenity concerns via conditions rather than refusal.
Reasons [21]:
Reasons [23]:
Reasons [24]:
Reasons [26]-[27]:
Reasons [35]:
This decision is most directly relevant where:
In such fact patterns, VCAT may be inclined to grant permission subject to conditions that remediate the identified issues rather than refuse the application outright.
This deep dive is limited to the judgment’s text and its authoritative content. The Reasons themselves do not cite later treatment. The decision is an example of VCAT’s approach to using conditions to manage access and amenity issues in subdivisions. Practitioners can expect it to be cited as supportive authority in cases where a rear lot with laneway access can be made acceptable by conditions, but any assessment of subsequent treatment by other courts or tribunals must be based on those later judgments and is not addressed in this decision text.
The weight to be given to non-incorporated Council policies: The Tribunal noted the Residential Land Subdivision Policy is a useful tool but not incorporated into the Planning Scheme (Reasons [13]). How much deference should be given to such policy in different factual mixes remains a point for case-by-case judgement.
The threshold for requiring a building envelope: The Tribunal rejected a three-dimensional building envelope in this case. The precise circumstances (lot sizes, relationship with neighbours, and specific amenity risks) that would make a building envelope necessary are not exhaustively articulated and remain context dependent.
Long-term use and maintenance of upgraded laneways: Conditions required the owner to upgrade the laneway at their cost 'to the satisfaction of the Responsible Authority' (Order and Conditions). The decision does not elaborate on how responsibility for future maintenance, liability for damage or the rights of other users would be allocated post-construction.
Interaction with emergency services and service provision: Council raised concerns about emergency vehicle access and servicing (Reasons [28], [17]). The Tribunal accepted conditions regarding services and design, but practical issues of waste collection, postal delivery and emergency access are to be resolved through the conditions and referral processes. The sufficiency of those mechanisms in every case is an open practical question.
Timing and procedural fairness where decisions are delayed: The Tribunal commented on the timing of the Council’s refusal and the long delay between application and review (Reasons [12]). The decision does not, however, delineate how procedural delay might affect substantive outcomes in other contexts.
Readers should rely on this decision as an example of how VCAT may balance lot adequacy, amenity concerns, and remedial conditions in subdivision cases, but must assess each future case on its specific facts and applicable local controls.
Disclaimer: This is general legal information only, not legal advice. I can make mistakes. Before you act on or rely on anything in this analysis, get a qualified Australian lawyer to check it.
Planning, Subdivision, Two lots, Failure, Application for Review, Allowed, Permit.
RESPONSIBLE AUTHORITY: Boroondarah City Council
It is ordered that that the Application for Review is allowed and a permit is granted for a two lot subdivision at 96 Rathmines Road Hawthorn East, subject to the following conditions:
1. Before the 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 copies must be provided, generally in accordance with the plans substituted with the application, but modified to show:
a) Internal driveway for Lot 2 designed in such a way that vehicles can access and egress the site in a forward direction.
2. The right-of-way on the western boundary is to be constructed to a trafficable standard at the cost of the owner to the satisfaction of the Responsible Authority.
3. The applicant may arrange for the construction of the ROW by private contractor to service the proposed development. This work may be carried out under Council supervision and will, in this instance, require the payment of a supervision fee of 2.5% of the estimated cost of the work (or a minimum of $200). Suitable design and construction plans should be submitted to Council's Manager Infrastructure Design for approval. Any costs relating to the connection, construction and or upgrading of the facilities are to borne by the owner or applicant.
4. It is incumbent on the applicant to provide engineering computations for the works. A checking fee of 0.75% of the estimated cost of the civil works is required to be forwarded to Council prior to the commencement of works.
5. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.
6. All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.
7. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.
a) The development does not started within two years of the date of this permit; or
b) The development is not completed within four years of the date of this permit.
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.
The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.
For the Responsible Authority: Mr. L. Rigoni, Consultant Planner of
Permit Applicant: Mr. J. Carvill and Mr. T. Carvill
1. This is an Application under Section 79 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of the failure of the Boroondarah City Council ("the Responsible Authority") to grant a permit within the prescribed time.
2. The Permit Application and the Application for Review were amended, pursuant to Clause 64(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, and Section 127(1) of that Act respectively, so that the name of the Applicant in each case was J.M. Carvill,
3. Mr. Rigoni, in his written submission for the Responsible Authority, described the proposal as follows:
"It is proposed to subdivide land to create two residential allotments. The proposal is summarised as follows:
Lot 1 which will maintain the existing dwelling, will be regular in shape and retain the frontage to Rathmines Road of 13.89 metres and an overall lot size of 573sqm.
Lot 2 is irregular in shape and is to be located behind Jot 1. The land has no frontage or access to Rathmines Road with proposed vehicle and pedestrian access solely via the right of way on the western boundary. The land has a maximum width of 25.40 metres and an overall lot size of 723sqm. No common property is proposed.
The subject site is located on the south side of Rathmines Road, 45 metres east of Stanley Street. A single storey weatherboard Victorian dwelling occupies the site which is set back 7.5m from 40 Rathmines Road.
Vehicle access to the site is obtained via an existing crossing located on the north west corner. A driveway extends in a southern direction from this crossing to an open car space. In addition there is vehicle access from a right of way located on the western boundary. Access to this right of way is provided via Lingwell Road to the south of the site. Further south behind the dwelling is a weatherboard garage and shed. On the eastern boundary is a weatherboard bungalow and swimming pool.
There are seven mature trees in the rear yard. The ground surface level falls approximately 3.23 metre from the north west corner to the rear south east boundary of the site.
The site is irregular in shape and comprises one parcel of land in an "L shaped" arrangement, with the following dimensions:
Rathmines Road is characterised by single storey detached dwellings from the Victorian era through to contemporary design.
Directly north of the subject site is Auburn Primary School.
To the south of the site are the rear of Lingwell Road residential properties, with 1 and 1A Lingwell Road adjoining the site on its southern boundary.
On the west side of the site is 90 Rathmines Road which is occupied by a single storey red brick inter war dwelling. The dwelling has a front setback of 15 metres and a side setback of 1.97 from the eastern boundary. A carport is setback 7.60 metres from the site frontage. The site is also serviced by a garage on the south-east corner with access via the laneway.
Adjoining the laneway are two flats, which have frontage to Stanley Street. The flats are setback 3.06 metres from the laneway and have habitable windows facing the subject site.
To the east of the site is 98 Rathmines Road which is occupied by a single storey attached dwelling that shares a party wall with the site. The frontage is characterised by a picket fence and provides two car spaces in the frontage setback.
5. The subject land is covered by the Boroondara Planning Scheme and is in a Residential 1 Zone which is the subject of Clause 32.01. The purpose of the zone is:
* 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.
6. A permit is required to subdivide land pursuant to Clause 32.01-2. That Clause also sets out Decision guidelines which are:
"Before deciding on an application to subdivide land into residential lots of between 300 square metres and 4,000 square metres (inclusive), in addition to the decision guidelines in Clause 65, the responsible authority must consider:
* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
* The Victorian Code for Residential Development - Subdivision and Single Dwellings, April 1992."
7. Decision guidelines are also set out at Clause 65.
8. Clause 32.01-3, Construction and extension of single dwellings on lots of at least 300 square metres, provides:
"On a lot of at least 300 square metres, one dwelling may be constructed or extended provided the development meets the performance measures for the following elements of the Victorian Code for Residential Development - Subdivision and Single Dwellings, April 1992:
* E4 - Vehicle parking (performance measures 1 and 2 only).
* E11 - Utilities provision (performance measure 1 only)
If the development does not meet one or more of these performance measures, i must comply with the Building Regulations 1994 or any variation granted under those regulations."
9. Relevant State and Local Planning Policy was addressed in the submissions for the Responsible Authority and the Applicant for Review/Permit Applicant, and these submissions have been retained on the Tribunal file.
10. The Permit Application was dated 1 June 1999 and the Application for Review of Failure was received by the Tribunal on 29 January 2001. The Responsible Authority advised the Tribunal, by letter dated 13 April 2001 which was received on 23 April 2001, that had an Application for Review of Failure not being lodged a Notice of Refusal would have been issued on the following grounds:
1. An inappropriate level of information has been provided to assess the potential impacts that may result from the future development of the land.
2. The proposal is likely to have a detrimental impact upon the amenity of the area.
3. The proposed subdivision will prejudice the proper future planning of the area.
4. The proposed subdivision is contrary to proper and orderly planning.
5. The proposed subdivision will not have a sense of address for Lot 2.
6. The sole use of the laneway for car and pedestrian access is inappropriate.
"Council was not able to make a formal decision because the applicant lodged a failure to determine with the Tribunal "prior to a decision being made"."
12. I note that the Refusal was in excess of 60 days after the Application for Review, not within 60 days of the Permit Application. The Application for Review was lodged in excess of 18 months after the Permit Application, and the decision that the Permit Application would have been refused was made in excess of 21 months after the Permit Application. I also note that the Officer's Report was dated 20 November 2000.
13. Mr. Rigoni noted that Objectors had raised concerns about potential loss of amenity from increased traffic on the laneway, which is unmade, and potential damage from vehicles using the laneway to their properties. Mr. Rigoni said that it would be necessary to ensure that adequate turning circles were provided so that damage would not occur to adjoining properties, as part of any development on the subject land. Mr. Rigoni said that a formal request for a building envelope was made by the Responsible Authority on 29 June 1999, and a further request was made on 1 December 1999. He said that no building envelope was provided, which is inconsistent with the Residential Land Subdivision Policy of the Responsible Authority. Mr. Rigoni said that this is not an incorporated document in the Planning Scheme, but it is a useful tool in assessing subdivision proposals.
"The proposal has the potential to impact on the amenity of adjoining properties particularly the properties that abut the site at the rear and to the west. This includes potential overlooking, overshadowing and visual bulk impacts. While Vic Code 1 sets minimum setbacks to deal -with amenity issues, it is a generic code that does not consider neighbourhoods individually and uses a minimalist approach. Therefore the proposal does not reflect the importance that the City of Boroondara places on character and maintaining residential amenity.
The application proposes direct vehicle and pedestrian access from the right of way abutting the western boundary. This right of way ranges in width from 2.86 metres to 3.44 metres and is currently unmade. It is considered that while lot 2 has rights of access to the laneway, the sole use of the lane for vehicle and pedestrian access to the site will cause a loss of amenity to the abutting properties."
15. Mr. Rigoni submitted that the proposal would prejudice the proper future planning of the area, and said:
"The current proposal is devoid of appropriate details of the building envelope and therefore provides little certainty for the future development of this land.
Clause 21.05 of the Municipal Strategic Statement sets out the local policy framework for Urban Character. The Overview Objectives for the City as detailed in Clause 21.05-1 are to:
"ensure that new development is site responsive and designed to a high standard, and that creative and innovative design solution's are encouraged," and to..."conserve and enhance areas and features of heritage and cultural significance and facilitate appropriate new development."
Clause 25.05-1 sets out the local planning policy framework for urban character and aims to conserve and enhance the city's characteristics and built environment by understanding what is important in urban design. It is noted that poorly designed sub-divisions threatens the very character and amenity of the City, which attracts new development in the first place. The subdivision is considered poor because it does not allow for a high level of amenity for future residents in particularly with relation to no sense of address and personal safety through informal interaction with the street.
The proposed subdivision is stand-alone and represents incremental development. The dwellings to the west are in close proximity to the eastern boundary so it is unlikely that any future development of the laneway will occur. Therefore the proposal is one off and represents a poor urban design outcome."
16. He submitted that it was contrary to proper and orderly planning, and said in support of this submission:
"A plan of subdivision approved without a building envelope will enable the subject site to be developed as of right without assessment against planning considerations and third party notification, leaving adjoining properties with a degree of uncertainty as to what may or may not be developed on the site. On this basis, it is considered that the proposed subdivision is contrary to orderly and proper planning."
17. Mr. Rigoni also submitted that the proposal did not provide a sense of address, because it was 45 metres from Lingwell Road which would be the only point of access. The fact that the laneway is not constructed and does not have lighting raised issues of personal safety for pedestrians, and as the proposed dwelling would not front any street it would not be visible from the street. He also said that emergency vehicles would find it difficult to access the site, and garbage collection and mail were unaddressed.
18. Ms. Nettleship, a Respondent/Objector, spoke to a written submission. Ms. Nettleship said that there was no objection to redevelopment, but it was important that there be appropriate conditions. Ms. Nettleship lives in the rear unit of 7 Stanley Avenue, and was speaking also for Ms. N. Douglas of 7A Stanley Avenue and Ms. J. Little of 4/5 Stanley Avenue. Ms. Nettleship said that there was no proper road access to the proposed rear lot, and the laneway was narrow, unmade and a dead-end. She submitted that use of the laneway as the sole access for Lot 2 would cause a detrimental impact to their amenity. There are bedrooms overlooking the laneway which is tree lined in parts, and acts as a visual and spacial buffer between local properties. There was concern that use of the laneway as sole access to the rear lot would cause noise disturbance, and anxiety and loss of privacy at all hours, and may lead to dispute. There was concern that vehicles that could not be accommodated on the rear lot would park in the laneway, and vehicles cannot turn in that laneway.
19. There was a written submission prior to the hearing from State Trustees for Ms. L. Fauvel, a Respondent/Objector of 90 Rathmines Road. This submission expressed concern about use of the laneway for access to Lot 2.
20. Mr. J. Carvill and Mr. T. Carvill spoke to a written submission. It was submitted for the Applicant for Review/Permit Applicant:
Ø The application involves the subdivision of residential land in a residential area. The subdivision has been designed with the current rules, Regulations and guidelines which form a Statutory framework.
Ø The subdivision provides a diversity of lot sizes in a locality which desperately requires it.
Ø The proposal complies with the relevant performance criteria objectives and measures of VicCode 1.
Ø The proposal is in an area which warrants high quality housing, it is envisaged that a high quality development will follow.
Ø The existing parcel of land is totally under utilized, an opportunity exists to create a very desirable location to live.
Ø Just as the objectors have a right to object, we as the property owners have a right to some form of certainty to make the best use of our land.
21. This is a proposal for a residential subdivision in a Residential 1 Zone. The proposed Lot 1 which fronts Rathmines Road and which contains the existing dwelling is 573 square metres in area. I do not consider that Lot 1 creates any difficulties. The proposed Lot 2 would be 723 square metres in area, and by any standards this is a relatively large residential lot. There are some difficulties with the respect to access to that proposed Lot 2, but I do not consider that these difficulties are insurmountable, and they can be dealt with by condition.
22. Mr. Rigoni tendered draft conditions that could be considered in the event that it was decided that a permit should be granted. The parties made submissions on these draft conditions.
23. Condition 1(a) would require a three dimensional building envelope for Lot 2. The representatives of the Applicant for Review/Permit Applicant opposed this condition and Ms. Nettleship had not comment. I do not consider that such a condition would be either necessary or appropriate. This is a residential subdivision in a Residential 1 Zone and the proposed Lot 1 is relatively large. There are appropriate controls on the erection of a dwelling on a lot of this size.
24. Draft Condition 1(b) would require that the internal driveway for Lot 2 be designed in such a way that vehicles can access and egress Lot 2 in a forward direction. I consider that this condition is appropriate.
25. Draft Condition 1(c) would have required provision of pedestrian access for Lot 2 to Rathmines Road. It was submitted for the Applicant for Review/Permit Applicant that this would serve no purpose. I do not consider that this condition would be appropriate.
26. Draft Condition 1(d) would require detail of laneway construction. This relates to Draft Condition 2 which would require that the right-of-way be constructed to a trafficable standard at the cost of the owner, to the satisfaction of the Responsible Authority. The representatives of the Applicant for Review/Permit Applicant did not object to this condition. Ms. Nettleship did object to construction to trafficable standard. This is a right-of-way and construction would be desirable, but I note that it would be "to the satisfaction of the Responsible Authority". Condition 1(d) and Condition 2 are appropriate.
27. Draft Condition 1(e) would require details of location of lighting in the laneway to be provided. Mr. Rigoni said that the Responsible Authority might not want this provision if pedestrian access was available to Rathmines Road. It was opposed by the Applicant for Review/Permit Applicant and by Ms. Nettleship. I consider that such lighting is desirable for public safety, and such lighting could be by bollards or similar, and not impact on amenity of neighbouring residents.
28. Draft Condition 3 would require that Lot 2 be known as 2/96 Rathmines Road. The Officer's Report said:
"The following comments have been provided by Council's Valuation Department:
* In accordance with Council policy, the laneway off Lingwell Road will not be named, especially with gravel surface.
* The street numbers will be Units 1-2/96 Rathmines Road and no correspondence will be entered into, in accordance with Council Policy.
* Query as to how will emergency vehicles attend with no access off Rathmines Road.
* Recommendation that it be approved unless at least foot access available off Rathmines Road."
29. I do not consider that Draft Condition 3 would be an appropriate condition in a planning permit.
30. Draft Conditions 4 and 5 relate to construction of the laneway and are appropriate.
31. Draft Condition 6 requiring provision on Lot 2 for turning movements duplicated Draft Condition 1(b).
32. Draft Conditions 7, 8 and 9 dealt with services and are appropriate.
"Prior to the issue of a Statement of Compliance a public open space contribution to the value of 2% of the site value shall be paid to the Responsible Authority."
"Council cannot require a financial contribution towards the provision of open space for a 2 lot subdivision unless it is considered that, either of the lots may be further subdivided in the future. In this instance, it is considered that it is possible that Lot 2 may be further subdivided. As such, a contribution may be applicable in this instance.
However, given that the application is to be refused, it is not necessary to stipulate the amount. Given the application is to be heard at VCAT based on the current plans, draft conditions will be prepared which shall require an appropriate public open space contribution."
35. There is no suggestion that Lot 2 would be further subdivided in the future, and in any event such subdivision would require a permit. I consider that Draft Condition 10 is inappropriate.
36. Draft Condition 11 dealt with time of commencement of development and time of completion, and is quite appropriate.
37. For the above reasons this Application is allowed subject to conditions. It is appropriate for a permit to be granted, and I will so order.
Carvill JM
Boroondara CC [2001] VCAT 1433
Application for Review allowed; permit granted for a two-lot subdivision at 96 Rathmines Road Hawthorn East subject to conditions including amended plans endorsed to the satisfaction of the Responsible Authority, internal driveway design to allow forward access/egress, detailed laneway construction and lighting, construction of the right-of-way to a trafficable standard at the owner's cost, engineering computations and checking fees, services agreements, easement provisions, referral under s8 of the Subdivision Act 1988, and permit expiry timelines (see Order and Conditions). The Responsible Authority was directed to issue the permit pursuant to s85(1)(b) of the Planning and Environment Act 1987 (Order).