VCAT Melbourne, 308 La Trobe Street, MELBOURNE VIC 3000

VCAT Melbourne, 308 La Trobe Street, MELBOURNE VIC 3000

Details of the location of the compulsory conference/hearing will be published on the Tribunal's website, under 'Upcoming Hearings' on the afternoon of the day prior to the hearing - www.vcat.vic.gov.au/upcoming-hearings

1. No later than 5 business days before the hearing, the parties must provide an electronic copy of their submissions and associated material (such as supporting documents, case law and photographs) to the Tribunal and all parties. The copy for the Tribunal must be sent to admin@courts.vic.gov.au
2. All expert evidence must be provided in accordance with the Tribunal's Practice Note PNVCAT2 Expert Evidence.

1. If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences. For more information, see the VCAT website www.vcat.vic.gov.au/fees

Matthew Butler, town planner, Clement Stone, town planners

Reasons for this decision were provided orally on 21 April 2026. The following is a written record of those reasons.

1. The practice day hearing was listed for the following purpose:
   1. to consider and determine the respondent's request dated 17 March 2026 that the application be summarily dismissed under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT act'); and
   2. if the application proceeds, to consider the future conduct of the proceeding.
2. Section 75 of the VCAT Act provides that:

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) is otherwise an abuse of process.

1. The parties filed written submissions in advance of the hearing and made oral submissions at the practice day hearing.
2. The application before the Tribunal is an application filed by an objector pursuant to section 82 of the Planning and Environment Act 1987 (Vic) ('PE Act') seeking review of the notice of decision of the council to grant a permit for an extension to an existing dwelling on the subject land. The applicant is the owner of 45 Margarita Street, Hampton. As described in the applicant's written submissions, 'The property has a tennis court which shares a side (western) property boundary with the common property area of the units at 39 Holyrood Street Hampton'.
3. Recent changes to the Bayside Planning Scheme ('Scheme') and all planning schemes in Victoria have led to a narrowing of matters open to third party review.
4. This application seeks review of the proposal's non-compliance with the following standards of clause 54 of the Scheme (noting that the initial application incorrectly refers to standards B2-3, B4-1 and B4-2):
   1. Standard A2-3 - side and rear setbacks;
   2. Standard A4-1 - daylight to existing windows; and
   3. Standard A4-2 - existing north-facing windows.

1. Prior to consideration of the application for summary dismissal, there are two matters to be resolved.

1. The first, raised by the council at the practice day hearing, relates to standard A2-3. Clause 54.02-3 contains the side and rear setbacks objective, which is to ensure that the height and setback of a building from a boundary responds to the existing or preferred neighbourhood character.
2. The council correctly noted that the proposal is not set back from the boundary at all, given that the built form extends to the boundary line, as the garden area associated with the subject land is formally considered common property within the greater unit development. It was explained that during the application process the council and permit applicant discussed whether it was appropriate to assess the application under clause 54.02-3 or clause 54.02-4, which contains the walls on boundaries objective. Although a decision was made at the time to assess the proposal under clause 54.02-3, the council considered it appropriate to raise this matter with the Tribunal in case it was raised as a concern at any stage by the Tribunal or parties.
3. It was confirmed that the application does not comply with standard A2-4, associated with clause 54.02-4, and that similar decision guidelines apply, in addition to also being a matter open for third party review.
4. Each of the parties present at the practice day hearing agreed that, in their view, the appropriate standard for this proposal, given the title details, should be standard A2-4 rather than A2-3. I agree. Although practically speaking the building is set back from the common property boundary, and from the private open space area adjacent to the building, technically the property sits on the boundary, and the built form must be assessed in that context. The applicant for review confirmed that it would oppose the proposal for its non-compliance with standard A2-4 just as it has in relation to standard A2-3.
5. Given that the application for review includes reference to three incorrect standards and I have determined that standard A2-4 should be applied rather than standard A2-3, I have amended ground 1 of the application to refer to standards A2-4, A4-1 and A4-2.

1. The second matter relates to standard A4-1 - daylight to existing windows, at clause 54.04-1.
2. The permit applicant explained that the initial advertised plans were non-compliant with this standard. However, discussion plans were provided to the council dated 7 December 2025 attempting to resolve some concerns with the proposal, including this non-compliance.
3. The council officer's report included the following commentary on this standard and the alternative solution offered by the December plans:

The daylight to existing windows objective is to allow adequate daylight into existing habitable room windows.

The standard requires a 3.53m setback from the existing habitable room window at Unit 15 No. 39 Holyrood Street. A 2.7m setback is proposed, seeking an 830mm variation.

Discussion plans were provided to Council on 9 December 2025, showing an increased (3m-3.88m) setback to the habitable room window. As seen in the screenshot above, when the 55 degree arc is swung, 35 degrees the discussion plans comply with the standard. A condition has been included within the recommendation for the southern setback to be increased to reflect discussion plans, which will result endorsed plans being compliant with the standard.

This increased setback will result in significantly more access to daylight through this existing window, particularly noting it is a north facing window. In light of the increased amenity introduced by the discussion plans, the proposed setback, in conjunction with the recommended permit conditions, the response to this standard is acceptable.

1. This requirement was included in the notice of decision. In addition, the permit applicant submissions for the practice day hearing clarified that the proposal, as included in the notice of decision, is compliant with standard A4-1 and, therefore, not open to review by third parties. I agree.
2. The applicant for review conceded this during the practice day hearing.
3. I have, therefore, struck out this ground of review on the basis that it is misconceived.
4. I note at this point that the applicant made submissions suggesting that notice ought to have been provided of the discussion plans prior to the council issuing its notice of decision to grant a permit.
5. Provision of discussion plans that seek to address concerns or issues raised during the application process and minimise detriment to amenity of neighbouring properties is not an unusual occurrence. If the application is not formally amended and if there was no significant change to the proposal that would necessitate further notice, there is no requirement to provide notice of discussion plans.
6. The notice of decision refers to the plans being generally in accordance with the advertised plans but for the change to the southern setback. It does not seek to substitute the discussion plans or include amendments to the proposal other than the southern setback. This is not a matter that required re-notification of the proposal prior to service of the notice of decision.

1. The application for review, further to resolution of the preliminary matters, is filed on the basis of non-compliance with standards A2-4 and A4-2.
2. The respondent (permit applicant) seeks summary dismissal of the application on the basis that it is misconceived or lacking in substance.
3. The applicant submitted as follows:
   1. The objector's review application meets the tests under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998, since it is not 'misconceived or lacking in substance.' The application for review relies on substantial grounds relating to factual non-compliances with Standard A2-3, A4-1, and A4-2 from Clause 54 of the Bayside Planning Scheme. Moreover, it is not our intention to exploit processes for personal gain. The application for review is not based on collateral purposes; it arises from genuine concern regarding the proposal and the issues arising from non-compliance with Clause 54 of the Bayside Planning Scheme.
   2. Based on the findings from presiding member Gibson in Chadband v Murrindindi SC [2005] VCAT 1039 (31 May 2005) it was determined that "cases are best decided on merits where possible and appropriate in accordance with the precepts of section 97 of the VCAT 1998," where the "tribunal must act fairly and according to the substantial merits of the case in all proceedings.' Additionally, in Glavinic v Glen Eira CC [2026] VCAT 133 (23 February 2026), the presiding member concluded that "it suffices to state that the tribunal exercises great caution before granting a dismissal application, because if granted an applicant loses the chance to prove its grounds in a hearing." By dismissing the application, it denies the applicant (and the objectors, who appear not to have been formally notified) the right to have the submitted plans reassessed on a merit's basis.
4. The respondent explained as follows:

(8) 45 Margarita Street does not share a direct interface with our client's property, owing to the presence of common property (belonging to 39 Holyrood Street's body corporate). 45 Margarita Street is one of the largest properties in the area (1531sqm).

(9) The common property land is used as open space for 14/39 Holyrood Street. The area is comprised of open lawn, a deck and paved area. The area is not proposed to be altered by the proposed development.

(10) The proposal is confined to alterations and extensions to the existing dwelling located at 14/39 Holyrood Street.

(11) Neither 15/39 Holyrood Street to the south, nor 13/39 Holyrood Street to the direct north objected to the proposal.

(12) Our clients engaged with their neighbours throughout the process, both before and during advertising.

(13) The owner's corporation of 39 Holyrood Street not only did not object to the application - but further consented in writing to the design prior to notice. We have included correspondence confirming this as an annexure to this submission.

1. Clause 54.04-2 includes the objective of allowing adequate solar access to existing north-facing habitable room windows. The decision guidelines to this clause are:
   • The design response.
   • Existing sunlight to the north-facing habitable room window of the existing dwelling or small second dwelling.
   • The impact on the amenity of existing dwellings or small second dwellings.
2. The applicant made the following submissions about this ground of review:
   1. The intent of this standard is to 'allow adequate solar access to existing north-facing habitable room windows.' We are of the view that the proposal does not adequately meet the intent of this clause, as it fails to responds towards the relevant decision guidelines under this clause.
   2. The proposal is non-compliant with the required setback to the southern property boundary adjacent to the existing habitable room window at 15/39 Holyrood Street Hampton. The required setback to the southern property boundary is 3.14 metres, however the proposal achieves a setback of 0 metres to the southern property boundary and 2.7 metres to the existing north facing window. The proposed variation or deficiency in this instance is approximately 3.14 metres.
   3. We are not advocating on behalf of the landowners at 15/39 Holyrood Street, Hampton. As part of our submission, we outline our concerns regarding the factual non-compliances with Standard B4-2 and the poor response to the decision guidelines, specifically the intent of Clause 54.04-2 of the Bayside Planning Scheme, which affords objectors third party review rights. The extent of objector review rights should not be limited to any built form or design concerns which relate to one interface with one property at 45 Margarita Street, Hampton.

1. We submit that the proposal does not respond to the relevant decision guidelines under Clause 54.04-2 for the following reasons:

39.1. We are of the view that the proposal has not been designed to minimise any potential impact on the amenity of existing dwellings, particularly towards existing sunlight access to the north facing habitable room of 15/39 Holyrood Street Hampton. Based on the overshadowing diagrams provided in the submitted plans, it is evident that the north-facing habitable room window is unable to receive adequate sunlight access due to extensive overshadowing for three hours between (10am -1pm), when northern daylight access is most intense. As such, the north-facing habitable room window only receives a total of 1.5 hours of sunlight access between (9am to 9:30am and 2pm to 3pm), which is outside of the hours of intense daylight access. As such, it is clear that the proposal will unreasonable impact daylight access to the existing north-facing habitable room window along the 15/39 Holyrood Street, Hampton.

(40) This objective and standard relate to the amenity of adjacent north facing windows. The clause seeks to allow adequate solar access / sunlight.

(41) The clause does not invoke or require the decision maker to consider effects on other adjacent properties (for example windows that are 40 metres away), the wider neighbourhood, or any other matters. This clause has a narrow focus.

(42) It is well established that the scope for community members to advocate for unrelated affected parties (where they are not joint applicants, for example) is limited. Third party rights are not open ended11. In this we refer to the commentary of Deputy President Gibson in Chadband v Murrindindi SC [2005] VCAT 1039 (31 May 2005) where the Tribunal found:

1. Third parties have very generous rights to object and participate in the planning decision making process within Victoria. However, in the case of permits those rights are not unlimited as the contrast between persons entitled to make submissions to a planning scheme amendment and to object to a permit demonstrates.
2. There will be limits to the extent that a person can rely upon community interest to justify affect by the grant of a permit. A point comes where that interest ceases to be one of a person having a legitimate interest as a member of a community and becomes merely the interest of a busybody or someone with a barrow to push.

(43) In our submission the assessment of this ground ought to be a matter between the permit applicant (respondent), the decision maker, and 15/39 Holyrood Street. We extend the same logic to the daylight standard above.

(44) The Council supports the variation to Standard A4-2 to the south12 based upon contextual / design considerations, the amended plans, and the approved conditions. We reiterate that 15/39 Holyrood Street is neither an objector, nor a party to this proceeding.

(45) We contend that the applicants' interests on this ground are so remote such that they cannot be said to be a person who would be affected by the non-compliance. The ground is bound to fail.

11 Refer Schinkel v Bass Coast SC [2009] VCAT 2644 - para 7.

12 Please refer to page 8 of the Councils Delegates Report.

1. Section 57(1) of the PE Act provides that 'any person who may be affected by the grant of the permit may object to the grant of a permit'. While the applicant in this proceeding is a legitimate objector, this wording is relevant to whether or not this ground is frivolous, vexatious, misconceived or lacking in substance; or is otherwise an abuse of process.
2. The applicant acknowledged in oral submissions that it is not affected by the non-compliance with this standard. It submitted that the north facing windows, in conjunction with the other concerns raised, is demonstrative of a design that seeks to push the envelope above and beyond what this particular title and lot should contain.
3. The Tribunal in Axicom Pty Ltd v Melton CC[1] set out the following general principles to consider in an application for summary dismissal under section 75 of the VCAT Act:
   • the proceeding must be obviously unsustainable in fact or in law, can on no reasonable view justify relief, or must be bound to fail.
   • the power to order summary dismissal should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. Indeed, it must be 'very clear' that the proceeding is 'absolutely hopeless'.
   • the power should not be invoked where all that is shown is that, on the material currently before VCAT, the applicant may fail to adduce evidence substantiating an essential element of the complaint.
   • a proceeding should not be summarily dismissed if the ultimate fate of the proceeding depends upon disputed questions of fact that could be established by evidence yet to be adduced or tested.
   • the respondent to a proceeding bears the persuasive burden of showing 'that the complaint is undoubtedly hopeless'.
4. I adopt these principles.

1. Having regard to the wording of clause 54.04-2, I find that the inclusion of this ground is an abuse of process, in circumstances where the applicant is not affected in any manner by the non-compliance with standard A4-2 and its submissions on this matter are bound to fail. I accept the submissions of the respondent in this regard.
2. For that reason, I have ordered the applicant's grounds, as they relate to standard A4-2, to be struck out.

1. The applicant, in responding to the side and rear setbacks objective and standard, made the following submissions:

(27) We submit that the distance of the adjacent property from the subject site, the substantial setback to the dwelling of 45 Margarita Street from the proposed development, and a comprehensive analysis of the clause lead to the conclusion that this ground is lacking in substance.

(28) This is effectively demonstrated within the elevation plans (extracted below). When Standard A2-3 envelopes are taken from the western side boundary of 45 Margarita Street, the proposal is compliant by more than 2 metres.

(29) The proposal would be comfortably compliant to the eastern side interface if our clients owned the common property land to the east.

(30) Evidently, they don't - the adjoining land to the east is a 4.3m wide parcel of owner's corporation land. It is not land belonging to the review applicant. As we have established, the relevant owners corporation consents to the application.

1. Submissions were not made directly concerning the walls on boundaries objective and standard during the hearing.
2. However, the applicant's general submission concerned the fact that its tennis court is adjacent to the common property/private open space and that it would be affected by development facing east. The applicant agreed that the non-compliance is technical non-compliance only, and conceded that if the private open space was part of the subject land and not common property, the proposal would be compliant with standard A2-3 and/or A2-4.
3. Having regard to the Axicom principles set out earlier in this decision, I do not consider that, with respect to the remaining ground, this application should be summarily dismissed. The applicant's position does not appear to be strong, and has now been further limited as a consequence of these orders. However, it has not yet been tested on the merits. The Scheme now significantly limits third party participation but does allow applications to be made concerning the matters raised by the applicant in this application. They are entitled to have those matters determined by a Tribunal, if not resolved by consent at a compulsory conference.
4. For these reasons, the application to summarily dismiss this application is refused.
5. The application will proceed to a compulsory conference on 23 April 2026 as listed.

Information for all parties is available at the Tribunal's website www.vcat.vic.gov.au

For information about what happens after you make your application, visit

www.vcat.vic.gov.au/afterapplyplanning

For information about responding to an application visit www.vcat.vic.gov.au/respondplanning

If you are not able to access the website, contact the Tribunal on 1300 01 8228 Monday to Friday 9.00am to 4.30pm to request a paper copy.

To find out about the Tribunal's support services such as interpreters, disability support and security, visit www.vcat.vic.gov.au/support

A compulsory conference is a private meeting between the parties to the proceeding.

With the assistance of a Tribunal member the parties can explore options to reach an agreement on all or some of the matters in dispute. The parties should come with an open mind and flexibility in considering options that could resolve the case.

Unless all parties agree, evidence of anything said or done in the course of a compulsory conference (including any document provided to the Tribunal for the purpose of the compulsory conference) is not admissible in any hearing before the Tribunal in the proceeding.

More information about compulsory conferences is available on the Tribunal's website at www.vcat.vic.gov.au and in VCAT Practice Note PNVCAT4 - Alternative Dispute Resolution (ADR).

If you are a party, you must attend the compulsory conference in person or by a representative who has written permission to settle the proceeding on your behalf. If you do not attend, the matter may be resolved in your absence and you may be struck out as a party. If all the parties present at the compulsory conference agree, the Tribunal may make a final order or make other orders that may affect you in an adverse way.

The Tribunal may make any of the following orders under the Victorian Civil and Administrative Tribunal Act 1998:

• If you are the applicant, your application may be dismissed or struck out.
• If you are not the applicant, you may be struck out as a party. This means that you can take no further part in the proceeding, including the hearing.
• The matter may also be settled, approving the proposal with or without changes.
• You may be ordered to pay the costs of the other parties in certain circumstances.

Only parties to the proceeding may attend a compulsory conference.

A person is a 'party' to the proceeding if the person:

• lodged an objection to the planning application
• has given a completed Statement of Grounds form to the Tribunal by the due date and paid the fee
• has indicated in their Statement of Grounds form that they intend to participate in the hearing

The following persons are NOT a party to a proceeding:

• a person who did not lodge an objection to the permit application
• a person who did not give their Statement of Grounds form by the due date and/or did not pay the fee
• a person who has indicated on their Statement of Grounds that they do not intend to participate in the hearing

If you are not a party to the proceeding but wish to be heard, you can attend at the start of the compulsory conference and ask the Tribunal to join you as a party to the proceeding. You will need to explain why you should be joined as a party to the proceeding. Other parties will also be given the opportunity to tell the Tribunal whether they agree or disagree about you being joined as a party. The Tribunal will then make a decision to join you as a party or not.

If you are not joined as party, you cannot take any further part in the compulsory conference and the Tribunal may make a final order or make other orders that may affect you in an adverse way.

A party who is struck out because they do not attend a compulsory conference cannot participate in any further compulsory conference or hearing.

What happens if agreement is reached at the compulsory conference?

If the parties present at a compulsory conference reach agreement, the Tribunal may make a final order to give effect to the agreement without a hearing being required. This can include allowing the proposal with or without changes.

What happens if agreement is not reached at the compulsory conference?

If parties present at the compulsory conference do not reach an agreement, a hearing date/s will be confirmed. An order will be issued by the Tribunal.

What happens if a partial agreement is reached at the compulsory conference?

If the parties reach agreement about some issues but not others, the hearing will proceed. If the parties present agree, the Tribunal may make an order that limits the issues to be considered at the hearing or specifies issues that will not be able to be considered. The Tribunal may also make further orders that restrict the ability of parties to raise any matters that were resolved at the compulsory conference.

What should you bring to the compulsory conference?

Parties should be come to the compulsory conference with a summary of their issues and solutions. This could include possible changes that could be made to the proposal in order to address your concerns or the concerns of other parties. The attached 'Summary of Issues and Solutions for a Compulsory Conference' may be used. The applicant for the permit should bring an extra copy of any relevant plans including elevations.

SUMMARY OF ISSUES AND SOLUTIONS FOR A COMPULSORY CONFERENCE**

It is suggested that each party identify key issues and potential solutions before the compulsory conference. This will help to clarify the key issues that the parties consider most important to them and possible solutions.

Most important issues in dispute from your perspective (including any legal matters) Use additional pages if required

What potential solutions would you consider? Use additional pages if required

[1] (Red Dot) [2020] VCAT 190 at [9].