Victorian Civil and Administrative Tribunal|2025-05-29

For the reasons outlined above I have concluded that the decision of the Responsible Authority will be set aside. A permit is granted subject to conditions.

Demolish or remove a building.
Construct a building or construct or carry out works.

Before the 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 this Permit. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans submitted with the application identified as TP-01 - TP-03, dated 15 January 2025, prepared by Po-Co Architecture, but modified to show:

(a) A reduction in the width of the permeable paving car park from 3,000mm to 2,400mm to allow for a 300mm garden area along the northern edge of the car park.

(b) The Electric Vehicle (EV) charge station located on the northern façade of the dwelling and set back from the front façade.

(c) All trees to be retained clearly identified in accordance with their designation as noted within the Arborist's Plan dated 04/06/2022, prepared by ArborReport Victoria.

(d) Tree protection fencing is to be erected around the TPZ of the street tree (Tree 13) to 2m, where occurring on the nature strip.

All fencing is to be erected prior to the commencement of all works on the site including demolition.

(e) All excavations for the construction of the proposed crossover are to be supervised by a suitably qualified and experienced arborist with all root pruning undertaken in accordance with section 9 of AS4373-2007 Pruning of Amenity Trees.

(f) A Tree Protection Zone (TPZ) of 3.73m for Tree 9.

TPZ measures to be installed before any works occur on site, including demolition works. The proposed driveway must be constructed at or above the existing soil level, with permeable materials (e.g. paving with geo-tec liner), and with no trenching or major excavation inside the TPZ.

These works will be closely supervised by the project arborist, to ensure there is no inadvertent impact to the roots of this tree.

(g) A Tree Protection Zone (TPZ) of 2.64m for Tree 11.

TPZ measures to be installed before any works occur on site, including demolition works. The proposed driveway must be constructed at or above the existing soil level, with permeable materials/paving, and with no trenching or major excavation inside the TPZ. These works will be closely supervised by the project arborist, to ensure there is no inadvertent impact to the roots of this tree.

(h) A section diagram of the material proposed within the car space.

When approved, the plans will be endorsed and form part of this Permit.

The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
A qualified arborist must oversee all works in and around Tree Protection Zones (TPZ) for trees 9, 11, and 13.
All services must be routed outside 'Tree Protection Zones'. If there is no alternative to passing through the protection zone, the local authority and the consulting arborist must be advised in writing on the need for directional boring beneath root zone; this must be maintained at a minimum depth of 45cm in soil depth when inside the TPZ of a retained tree.
All tree protection zones must be observed according to Australian Standard AS4970-2009 Protection of trees on development sites. Tree protection zones are to be shown all plans and must be put in place before any works occur on site.
All pruning recommended is to be carried out to Australian Standards, AS4373-2007 Pruning of Amenity Trees. This work should be supervised or carried out by a qualified arborist.
Before the development (including demolition) commences, a Canopy Offset Fee of $1000 must be paid in full to the Responsible Authority for the planting of a replacement street tree within the nature strip adjacent to the frontage of the site or elsewhere within the Municipality.
The land must be drained to the satisfaction of the Responsible Authority.
The area set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:

(a) constructed

(b) properly formed to such levels that they can be used in accordance with the plans

(c) surfaced with an all-weather sealcoat; and

(d) drained

Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.
Before the occupation of the development all vehicular crossing(s) must be constructed to align with approved driveways to the satisfaction of the Responsible Authority.
This Permit will expire if either:

(a) The development does not start within three (3) years from the date of this Permit; or

(b) The development is not completed within five (5) years of the date of this Permit.

As relevant, the Responsible Authority may extend the times referred to if a request is made in writing:

(a) Before this Permit expires;

(b) Within six (6) months after the expiry date; or

(c) Within twelve (12) months after the expiry date if the request relates to the completion of the development or a stage of the development.

[1] I have considered all the written and verbal submissions made by the parties (including all of their tendered documents), and the filed statement of grounds. In accordance with the practice of the Tribunal, I do not refer to all of the contents of these documents in my reasons.

Administrative Tribunal Act 1998(Vic)

Environment Act 1987

Croker v Darebin CC [2025] VCAT 480 (29 May 2025)

Aside from the electric vehicle charging station, the proposal does not alter the existing 'significant' dwelling at all. Indeed, by virtue of the considerable extension permitted by Planning Permit D/224/2021, the original appearance of the existing dwelling, including its appearance within the streetscape, is being modified by virtue of its extension, which includes a new upper level. The development approved by Planning Permit D/224/2021 is currently under construction.
The new front fence and sliding gate will effectively screen the permeable paving of the new at-grade car space. Due to the location of the new car space, hard up against the north-east corner of the subject site, even when a car is parked in the space, it will have a negligible impact on views to the front façade of the existing dwelling. Indeed, the proposal retains a 6.65 metres length of front garden space, compared to the 3 metres of proposed front car space. Further, the applicant has prepared 'discussion' plans showing that the width of the permeable paving can be reduced to 2.4 metres, which increases the area available for landscaping along the northern edge of the subject site. I do not consider that the proposed car space (reduced in width to 2.4 metres) results in a dominant element within the front garden area, nor does it result in any unreasonable obscuring of views to the existing heritage dwelling (when there is a car parked in the space).
The proposed car space takes up less of the overall front garden area, and is adjacent to less of the front building façade, as compared to the existing car space on the abutting property at no. 11 Cornwall Street. The property at no. 11 Cornwall Street is also graded as a 'significant' building and has been redeveloped with a new extension, including an upper level. The existing car space on the abutting property at no. 11 Cornwall Street is also located in the north-east portion of its frontage and was approved by the Tribunal in Croker v Darebin CC [2018] VCAT 877. In the case at no. 11 Cornwall Street, the Tribunal found that the car space and crossover does not adversely affect the significance of the heritage place as it does 'not include structures that could detract from the primary views of the dwelling' (refer to paragraph 12 of the decision).
I endorse the finding of the Tribunal in Croker v Darebin CC, and similarly find that in this case the proposal does not detract from the primary views of the dwelling.
I acknowledge that the general element of the Statement of Significance (that is, not the element of the Statement of Significance that specifically applies to the 'Residential Area to the east of High Street' sub-area) identifies the HO161 precinct as being historically important as follows:

I disagree with the Council that this aspect of the Statement of Significance necessitates an opposition to the proposed crossover, particularly given the existing physical context of Cornwall Street. I do not consider that the proposed crossover undermines how this part of the HO161 precinct is understood historically and how the development and subdivision of Cornwall Street relates to its pedestrian accessibility to the nearby Westgarth shopping centre on High Street.
Ultimately, I prefer the applicant's analysis which describes how the northern end of Cornwall Street differs from its southern end, with the two non-contributory buildings within the street (at nos. 7 and 8 Cornwall Street) delineating this north-south bi-furcation. In this northern part of Cornwall Street there are existing vehicle crossovers at nos. 8, 11 and 12 Cornwall Street, along with nos. 16 and 18 Candy Street (located at the end of the Cornwall Street cul-de-sac). As already identified, no. 11 Cornwall Street is graded as a 'significant' building, as are the buildings at no. 12 Cornwall Street and nos. 16 and 18 Candy Street. Given these existing conditions, I agree with the applicant's submission that 'the introduction of a new crossover for the subject site is consistent with the character of this part of the street', that is the northern end of the street.
This contrasts to the circumstances in the Tribunal decision referred to by the Council (Trlin v Darebin CC [2008] VCAT 1327) where a new crossover in the HO162 (not the HO161) was not supported, in part, because the Tribunal said: "I do not consider there to be a pattern of driveways and car parking in front setbacks associated with significant or contributory heritage buildings immediately around the review site." Conversely, in this case, I find that there is an existing condition/ pattern of crossovers/ front car parking in the northern end of Cornwall Street. As already discussed, there are two 'significant' heritage buildings featuring a front crossover and car space located proximate to the subject site, in the northern end of Cornwall Street.
The Council also referred to two other previous Tribunal decisions in support of its opposition to the proposed crossover. The first one is Hills v Darebin CC [2022] VCAT 1462, which applies to a property at no. 18 Sumner Avenue, Northcote, in the HO165. This proposal included a car space essentially in the centre portion of the front garden area, as compared to the proposal before me which is for a car space positioned discreetly in the corner of the subject site which successfully mitigates its visual impact. Further, the property at no. 18 Sumner Avenue is a corner allotment and featured existing crossovers to its side street. The subject site is not a corner allotment, and under the existing conditions, vehicular access to the rear of the property from the abutting laneway is not feasible (as demonstrated by the applicant and accepted by Council).

Croker v Darebin CC [2025] VCAT 480

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (3)

Croker v Darebin CC [2025] VCAT 480 (29 May 2025)