//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2009] VCAT 433
appellant. VCAT set aside Wyndham City Council's refusal and directed that a planning permit be granted for the construction of two double‑storey dwellings at 1 Norman Grove, Werribee South, subject to...
VCAT allowed Clause 1 Pty Ltd's review and granted a permit for two attached double‑storey dwellings at 1 Norman Grove, Werribee South. The Tribunal held that a local policy seeking 'minimal urban development' did not justify refusal of modest development within land already zoned Residential 1 and with urban services. The Tribunal also found the proposal fit the neighbourhood character (noting existing two‑storey dwellings nearby) and complied with Clause 55. Accordingly the council's refusal was set aside and a permit ordered, subject to conditions.
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.
1,644 words · generated 28/06/2026
Clause 1 Pty Ltd applied for a planning permit to construct two attached double‑storey dwellings on a 534.8 square metre lot at 1 Norman Grove, Werribee South. The Responsible Authority, Wyndham City Council, refused the permit. The Notice of Refusal relied principally on three grounds: (1) the proposed development was contrary to Clause 21.05 of the Municipal Strategic Statement (MSS) which states that Werribee South should allow for minimal urban development, (2) the proposal failed to respect neighbourhood character (Clause 55.02‑1), and (3) the proposal was contrary to proper and orderly planning. The application was advertised and eleven objections were received, focused mainly on traffic, parking and the second storey.
1 cited instrument linked from this judgment.
The applicant sought review in the Victorian Civil and Administrative Tribunal. The hearing occurred on 13 March 2009 before Member Geoff Rundell, with the Tribunal issuing its decision on 19 March 2009. The Tribunal set aside the Council’s refusal and directed that a permit be issued for the two double‑storey dwellings, subject to conditions (Appendix A). The Tribunal’s reasons addressed three central questions: consistency with the State and Local Planning Policy Frameworks, consistency with neighbourhood character, and whether the proposal was well designed.
Three interlocking findings explain the Tribunal’s decision.
Policy context and zone purpose: The Tribunal emphasised that the site sits within a Residential 1 Zone, the purpose of which is to implement the State and Local Planning Policy Frameworks and to provide for residential development at a range of densities to meet household needs. The Tribunal found Council’s reliance on the MSS statement to 'allow for minimal urban development' was an unduly narrow application of local policy when applied to land already zoned for residential development with urban infrastructure available (reticulated sewer, drainage and sealed road). The Tribunal held that the MSS policy was more appropriately directed at decisions about rezoning and expansion of the urban boundary, rather than being used to refuse modest development within the existing urban envelope. In short, a policy to limit urban expansion does not automatically displace the zone’s purposes for land already zoned residential.
Neighbourhood character: The Tribunal treated neighbourhood character as an evidence‑based inquiry about whether a proposal 'fits in' with local context, scale, form and appearance, rather than as a prohibition against any change. Here the Council argued Werribee South was predominantly single storey and low key, but the applicant produced a locality plan and photographs showing that, of 16 dwellings within 50 metres, seven were double storey and that two‑storey attached dwellings were present across the township. The Tribunal accepted that urban residential areas typically have variance in building height and that a one‑storey difference between adjoining buildings is common and acceptable. The Tribunal also noted that setbacks, site coverage and building materials in the proposal matched neighbouring development. Given the evidence of existing two‑storey dwellings and multi‑unit developments, the Tribunal concluded the proposal respected neighbourhood character.
Design and amenity (Clause 55): Both parties agreed the proposal complied with the objectives and standards of Clause 55 (ResCode). The Tribunal recorded that overlooking concerns were addressed (first‑floor windows were shown to be screened), car parking was adequate and the additional dwelling would not burden the road network. The Tribunal therefore found the development provided good internal amenity and did not impose adverse impacts on neighbours.
Combined, these findings led to the conclusion that the proposal was consistent with the planning framework, respectful of neighbourhood character, and well designed; accordingly, the refusal was set aside and a permit ordered.
Before this decision: Planning authorities commonly relied on MSS statements promoting limited development in small townships when adjudicating individual permit applications. Where local policy suggested minimising urban development, councils sometimes refused permits for infill or modest intensification on the basis that the character or strategic direction for a township required minimisation of urban development.
After this decision (as applied to similar facts): The Tribunal’s reasoning clarifies that a local policy limiting urban expansion must be read in context. If land is already included within an urban residential zone (here, Residential 1 Zone) and proper infrastructure exists, that zone’s purposes, to allow residential development at a range of densities, carry significant weight. The MSS directive about minimal urban development is, in the Tribunal’s view, principally a policy instrument for rezoning and expansion decisions, not for refusing modest development within already zoned land. The decision therefore provides a useful precedent for applicants seeking modest infill in townships where an MSS encourages limited expansion but the land concerned is already zoned for residential development.
Limitations: The holding is fact specific. The Tribunal’s reasoning emphasised available urban infrastructure, the presence of two‑storey buildings nearby, and compliance with Clause 55. Different facts, absence of services, clear and articulated preferred character statements in the planning scheme, or non‑compliance with ResCode, could lead to a different outcome.
"I find that Council's interpretation of its policy at Clause 21.05 to be overly narrow and inconsistent with the full policy framework."
Plain English: The Tribunal considered Council had given Clause 21.05 a meaning that was too strict; you cannot use that single statement in the MSS to override or ignore the purpose of the Residential 1 Zone and the broader planning framework.
"I consider that the policy of minimising urban development in Werribee South is more relevant to the issue of whether additional land should be rezoned to facilitate an expansion of the Werribee South urban area."
Plain English: The 'minimal urban development' aim is about whether to expand the town’s boundaries, not about whether small developments inside the town should be allowed.
"On this basis I conclude that the proposed two storey dwellings are consistent with the character of the neighbourhood."
Plain English: Because the area already contains two‑storey and attached dwellings and because the proposed building fits the local pattern of setbacks and materials, the proposal respects local character.
"Both parties agreed that the proposed development meets all of the relevant objectives and standards in Clause 55."
Plain English: The design rules in ResCode that deal with matters such as setbacks, overshadowing, privacy and internal amenity are satisfied by the proposed dwellings.
This decision is most directly applicable to fact patterns where:
Conversely, the decision is less likely to assist an applicant where the land is outside the urban zone, where infrastructure is absent, where the scheme contains a specific built‑form character statement ruling out the type of development proposed, or where the proposal fails Clause 55 standards.
The present deep dive confines itself to the source judgment text and does not posit subsequent case law. The judgment itself contains no cited VCAT or court decisions. Practitioners should search subsequent VCAT and court decisions to see whether this reasoning has been applied or distinguished. However, within the decision the Tribunal signals an interpretive approach that reads MSS policy in the context of zone purpose and the broader planning framework; that approach is consistent with mainstream planning adjudication which requires scheme provisions to be read purposively and in harmony where possible.
Degree of deference to MSS ambitions: The Tribunal treated the MSS statement as primarily about rezoning. The line between a local policy precluding certain forms of development within an existing urban zone and a policy aimed at preventing expansion is context dependent. How strongly a council can rely on MSS language to refuse permits within zoned land remains an open, fact‑sensitive question.
Weight of preferred neighbourhood character statements: Here the planning scheme did not contain an explicit preferred character statement for Werribee South. If the scheme had included a detailed neighbourhood character policy expressly rejecting two‑storey or attached dwellings, would the outcome differ? The decision suggests the presence of concrete scheme statements or strategic work could change the balance.
Infrastructure sufficiency: The Tribunal relied on the presence of urban services at the site. The threshold for what constitutes sufficient infrastructure to justify infill remains practical and may vary with local circumstances; disputes may arise where services exist but are at or near capacity.
Scope of Clause 55 compliance: The Tribunal treated Clause 55 compliance as decisive in the amenity analysis. Where Clause 55 standards are met but neighbours complain of cumulative or strategic impacts (for example, incremental loss of a township’s low‑density character), questions remain as to how much weight is given to scheme objectives versus strict standards compliance.
Use of MSS to guide rezoning vs permit decisions: The Tribunal’s articulation that the MSS 'minimal urban development' policy is more relevant to rezoning than permits is persuasive, but where MSS language is framed in terms that address development intensity within the existing urban boundary, the point of application may be contested.
Practitioners should therefore pay careful attention to the exact wording of relevant MSS and character statements, to the zone status and availability of services, and to the evidentiary record about the local built form when relying on this decision in arguments about modest infill development.
Section 77 of the Planning and Environment Act 1987; Wyndham Planning Scheme; Werribee South township; Residential 1 Zone; Neighbourhood character; Minimal residential development; Community infrastructure; Traffic and parking.
Clause 1 Pty Ltd v Wyndham CC [2009] VCAT 433
Section 77 Planning and Environment Act 1987
The land is a rectangular lot with a frontage of 15.24 metres and a depth of 35.05 metres, and an area of 534.8 square metres. The land is located on the south side of Norman Grove, approximately 29 metres west of Chandler Street, Werribee South.
The land is generally flat and contains a single detached dwelling and a separate garage at the rear of the land.
Norman Grove (the frontage) is an unsealed track that is only used by emergency vehicles. Vehicular access is gained to the land from Norman Nolan Grove, a sealed right of way that abuts the southern boundary of the land.
The parties at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. These materials have been retained on the Tribunal's file. In light of the extensive photographs and descriptions provided by the parties, the Tribunal did not inspect the land and its environs.
Is the proposal consistent with the State and Local Planning Policy Frameworks?
Allow for minimal urban development in Werribee South and Little river within defined township boundaries.
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.
Is the proposal consistent with the character of the neighbourhood?
To develop two double storey dwellings on 1 Norman Grove, Werribee South in accordance with the following conditions.
The landscape area(s) shown on the endorsed plan(s) must be planted and maintained to the satisfaction of the Responsible Authority and once landscaped must not be used for any other purpose except with the prior written consent of the Responsible Authority.
Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.
The location, design and construction of the vehicle crossing(s) must be approved by the Council and must be in accordance with Council Standard Drawing SD4-1 for single residential vehicle crossing.
Any stormwater pit lids within 1 metre of vehicle crossings must be upgraded to type 'Class D'.
A road opening permit must be obtained from Council for the proposed crossover. Approved town planning drawings must be submitted when applying for a road opening permit.
The whole of the subject land, including landscaped and paved areas must be drained to the legal point of discharge to the satisfaction of the Responsible Authority.
Each dwelling is to connect to Council's underground stormwater drainage system.
The development is to make provision to retard/detain a minimum total volume of 2,000 litres (1,000 litres per dwelling) before discharging to Council's stormwater drainage system.
The development permitted by this permit must not be occupied until:
All activities associated with the construction of the development permitted by this permit must be carried out to the satisfaction of the Responsible Authority and all care must be taken to minimise the effect of such activities on the amenity of the locality.
All noise associated with the construction of the development must comply with EPA's Environmental Protection (Residential Noise) Regulations 1997 No. 120 and State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1.
All outdoor lighting must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.
Except for garbage collection days, garbage containers must be stored out of view to the satisfaction of the Responsible Authority.
All clotheslines must be positioned so as not to be visible from any nearby street to the satisfaction of the Responsible Authority.
All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.
No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the buildings without the prior written consent of the Responsible Authority.
Any air-conditioning or cooling units, condensers and the like must not be located on external walls or on balconies without the prior written consent of the Responsible Authority.
This permit will expire if the development permitted by this permit is not commenced within two years from the date hereof. The time within which the development must be completed may on written request made before or within three (3) months after the expiry of this permit be extended by the Responsible Authority.
NOTE: Any new or modified crossovers require separate approval from Council's Roads Development Section.
NOTE: This permit is issued pursuant to the provisions of the Wyndham Planning Scheme and does not relieve the permit holder of the necessity to obtain a building permit pursuant to the Building Act 1993 prior to commencement of any construction or works on any part of the site.
Clause 1 Pty Ltd
Wyndham CC [2009] VCAT 433
VCAT set aside Wyndham City Council's refusal and directed that a planning permit be granted for the construction of two double‑storey dwellings at 1 Norman Grove, Werribee South, subject to conditions (see Appendix A in the judgment).