//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2002] VCAT 1617
appellant. The decision of the Responsible Authority was set aside. A permit was granted and directed to be issued for the construction of two three-storey dwellings, subject to 18 conditions including...
A planning tribunal overturned a council's refusal to allow two three-storey townhouses on a small corner block in Fitzroy North. The site was zoned for business but surrounded by residential and heritage properties. The tribunal found that the modern design would not harm the heritage value of neighbouring old houses because it looked distinctly different rather than trying to copy them. While the buildings would cover 80% of the land and have three storeys, the tribunal accepted this was reasonable for such an urban location. The tribunal did require some changes: lowering a boundary wall from 3 metres to 2.7 metres, removing an upstairs bathroom to increase setbacks, and adding privacy screens. The shadows cast on the neighbour's yard were found to meet planning guidelines. Overall, the tribunal decided the design was good quality architecture that made the best of a difficult site, and approved the development with 18 conditions attached.
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 cited instrument linked from this judgment.
Application under Sections 77 Planning & Environment Act 1987; Yarra Planning Scheme; Business 1 Zone; Two dwellings; Heritage; Building Bulk and Height; Daylight and Overshadowing.
The decision of the Responsible Authority is set aside. A permit is granted and directed to be issued for the land at 228 Barkly Street, Fitzroy North, Victoria 3068.
The construction of two, three storey dwellings in accordance with the endorsed plans.
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 generally in accordance with the amended application plans, but modified to show:
a) Deletion of the en-suite bathroom from the second floor to increase the setback from the street.
b) The reduction in height of the ground floor level walls along the eastern property boundary to a maximum height above ground level of 2.7 metres.
c) The provision of screening in accordance with Element 7 of the Good Design Guide to the south-facing, first floor level balcony to Dwelling 2.
e) Details of storage of rubbish and recycling bins for both dwellings.
f) A roof plan detailing the nature of all works and services on the rooftop level of the building.
g) Landscape plan, generally in accordance with the plan prepared by Habitat Landscape Design dated October 2002.
2. All development must accord with the endorsed plans. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
4. The walls adjacent to the boundaries of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the Responsible Authority.
5. Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7am - 6pm, Monday-Friday (excluding public holidays) and 9am - 5pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.
6. A letter box located on the street frontage shall be provided for each occupancy on the property to the satisfaction of the Responsible Authority.
7. 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, paving and structures.
8. The street number of the property shall be clearly visible from the footpath.
9. No equipment, services and architectural features other than those shown on the endorsed plans shall be permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.
10. All piping and ducting other than downpipes and spouting above the ground floor of the building shall be concealed.
11. Provision shall be made for the storage and disposal of garbage to the satisfaction of the Responsible Authority. All garbage storage areas must be screened from public view.
12. The new crossings/driveways shall be constructed in accordance with Council's Vehicle Crossing Standards.
13. All damaged road(s) and footpath(s) adjacent to the development site must be reinstated to the satisfaction of the Responsible Authority.
14. No fewer than 4 car spaces must be provided on the land for the development.
15. Storm water drainage of the property must be provided to the nearest Council pit of adequate depth and capacity to the satisfaction of Council.
16. Areas must be provided inside the property line and adjacent to the footpath to accommodate pits and meters. No private pits, valves or meters on Council property will be accepted.
17. Refuse collection is only permitted from main road frontage. For multi unit developments where some units do not front a main road, an area must be provided inside the property line and adjacent to the footpath of the main road to accommodate refuse containers to the satisfaction of Council.
18. This permit will expire if the development is not commenced within two years from the date of this permit. All development must be completed within 2 years from the date of commencement. The Responsible Authority may approve extensions to these time limits if requests are made within 3 months of expiry.
_____________________________
For the Applicant for Review: Mr. Martin Field appeared in person and made an oral submission.
For the Responsible Authority: For the Responsible Authority, Mr. David Vorchheimer, Planning Advocate, Yarra City Council.
For the Respondent/Permit Applicant: Mr. John Cicero of Best Hooper Solicitors. Mr. Hooper called Mr. E. Zagami, Planning Consultant, to give evidence.
1. This was an application under Section 77 of the Planning and Environment Act 1987 to review a decision by the City of Yarra to refuse grant a permit (in Application No. PL01/0885) for the land at 228 Barkly Street, Fitzroy North to be used/developed for the purpose of two three-storey dwellings.
2. The subject site is located on the south-east corner of Barkly Street and St. Georges Road, Fitzroy North. The site is regular in shape and has a frontage of 8.27 metres, a depth of 35.64 metres and an area of 303 square metres.
3. The Tribunal finds the following description of the site and locality, taken from Mr. Vorchheimer's written submission, to be an appropriate one:
The land is currently fenced with a 3 metre high chain link wire fence, and aside from the single storey structure at rear is hard paved and devoid of vegetation. It is likely that the site may have originally contained a dwelling.
Although the site is contained within the Business 1 Zone associated with the St. Georges Road shopping strip, other than visibility, its location on Barkly Street has meant that it has little physical connection with this business strip. It seems evident that the Business zoning of the land mostly likely reflects the previous use of the land for the purpose of car sales.
A 3 metre wide crossover currently exists adjacent to the sites northern (Barkly Street) property boundary.
Surrounding land is generally used and developed for residential purposes along Barkly Street and for retail and commercial purposes along St. Georges Road. Development along St. Georges Road is characterized one and two storey Victorian and Edwardian style shop buildings, interspersed with more modern additions. Development along Barkly Street is generally characterized by attached and detached, single storey Victorian and Edwardian style dwellings, interspersed with a number of 1960's residential flat buildings and a recent two storey townhouse development at 229 Barkly Street.
Land to the south (rear) of the subject site (193 Holden Street) is developed with a detached single storey, period style dwelling, front Holden Street. The dwelling is provided with approximately 79m2 of rear secluded open space, which abuts the rear of the subject land. Vehicular access to this site is available via the 3 metre wide laneway, adjacent to the subject land's western property boundary.
Land to the east of the subject land (230 Barkly Street) is developed with an attached single storey Edwardian style dwelling of brick construction. This dwelling is setback approximately 4 metres from the front (Barkly Street) property boundary. The dwelling is not provided with any on site car parking, and incorporates landscaped front setback area and a 98m2 rear secluded private open space area. This dwelling is setback approximately 1.5 metres from its western property boundary (common boundary with subject site), and contains a number of west-facing habitable room windows.
The subject site is bounded by a sealed 3 metre wide laneway along its western property boundary. This laneway runs north-south from Holden to Barkly Streets and provides access to the rear of properties fronting St. Georges Road and Holden Street.
Land further to the west (across the laneway) is developed with attached single storey shop buildings fronting St. Georges Road. These shop buildings, which are period in style, possess a high parapet to St. Georges Road.
Land to the north of the subject site (opposite side of Barkly Street - 229 Barkly Street) is developed with two attached two storey dwellings. These dwellings, constructed in 1980's, are of brick construction, possess pitched roof forms, and are setback 1 metre from the principal street frontage.
4. Mr. Vorchheimer described the proposal in the following terms:
* Kitchen, living/dining room, bathroom, laundry, double garage and a 32.4m2 north-facing courtyard, at ground floor level;
* Three bedrooms, two bathrooms and a 3.8m2 north-facing balcony, at first floor level; and
* Study/studio and a 6.8m2 west-facing balcony area, at second floor level.
Dwelling 2 (fronting the laneway) is to incorporate:
* Two bedrooms, bathroom, laundry, storage area and double garage at ground floor level; and
* Kitchen, living room, dining room and a 14.8m2 south-facing deck area, at first floor level;
* Master bedroom, with ensuite bathroom and a 14.2m2 south-facing deck area at second floor level.
Dwelling 1 is to front Barkly Street, whilst Dwelling 2 is to front the laneway.
The proposal is to be setback from the front (Barkly Street) property boundary 5.4 metres at ground level, 4.5 metres at first floor level, and 13.4 metres at second floor level.
The development is to be built along both the eastern and western boundaries at various points, with wall heights and lengths of walls varying along these boundaries.
The development is to incorporate a 3 metre high wall along the eastern property boundary at ground level for a length of 18 metres (50% of boundary length). The remainder of the building is setback between 1.2 and 1.8 metres from the eastern boundary at ground level. First floor walls (5.5 metre height) are setback 1.8 metres from the eastern property boundary, whilst second storey walls (8.055 metre height) are setback 3 metres from the eastern property boundary. (The 8.05 metre height requires a setback of 3.15 metres from the eastern property boundary - E6.T4.)
The proposal is to have a maximum height of 9 metres above ground level, and is to stretch along the block, running north-south, with a setback at the ground floor from the western (laneway) property boundary to provide turning circles for the garage areas.
The proposal is built to the western boundary for the most part at first floor level, and setback 2 metres from the southern boundary. The first floor south-facing terrace area provides some relief from this envelope, with the rear living areas for Dwelling 2 setback 3.4 metres from the eastern boundary, and 4.85 from the southern property boundary.
The proposed development is to occupy approximately 80% of the site, with a density of 1:151m2, is to be contemporary in design and utilizes a mixture of materials and colours, consisting of coloured rendered masonry, timber window frames, glass and powder coated aluminum louvres.
The proposal is to provide a 1.8 metre high front fence to the northern (Barkly Street) property boundary.
Vehicular access to the site is to be provided via the abutting 3 metre wide laneway adjacent to the western property boundary of the subject site.
5. The relevant planning controls were fully set out at pages 7 - 16 of the Responsible Authority's submission, which I adopt for the purposes of this determination.
6. The subject application for permit (No Pl01/0885) was lodged with the Responsible Authority on 31 July 2001. Following the giving of notice of the application, one objection was received. The grounds for objection were summarised by Mr. Vorchheimer as follows:
* Dwelling is too far back and dominating rear yard of dwelling to east of site;
* Three metre high wall on eastern boundary opposite all house windows;
* Proposal will darken adjacent property to east;
* Terrace on south side of first floor will dominate back yard;
* Proposal should be more sympathetic and two storey.
7. The application was referred internally to Council's heritage adviser who noted that: the three storey section, although setback, would be visually to bulky in streetscape in Barkly Street and from north-west in relation to the row of shops. Clarify proposed materials for level 3. At its meeting on 17 May 2002 the Council's delegate resolved to refuse to grant a permit on the following grounds:
* The proposal is not consistent with the Local Planning Policy Development Guidelines for Heritage Places cl. 22.02 of the Yarra Planning Scheme in that it dominates the adjacent heritage dwelling and its relative position adjacent to Edwardian commercial buildings through part of the three storey form.
* The proposal is not consistent with the objectives of Element 6 (Building Envelope) in that it results in an unacceptable level of building bulk expressed to the dwelling to the east and has a level of site coverage that is not consistent with the surrounding residential area.
The subject application for review was lodged on 27 June 2002. The stated grounds of review were that:
* The proposal is generally consistent with Clause 22.02 and Element 6 of the Good Design Guide.
* The proposal will not be detrimental to the amenity of the area.
8. Subsequent to the hearing the Tribunal inspected the subject site as well as the surrounding area.
9. The principal issues for consideration in respect of this application for review fall can be considered under the following headings:
The proposal calls for the residential development of two dwellings on a site in a Business 1 Zone which interfaces with the Residential 1 Zone in an area affected by the Heritage Overlay. In this context, I agree with the submissions made by Mr. Cicero that the questions to be determined are whether the proposed development will detract from the cultural significance of the heritage place, or from the significance of an element of the heritage place, being the Edwardian dwelling owned by Mr. Field on the eastern side.
Although the subject site is within the Heritage Overlay, it contains no features of heritage significance. On the western side, the site abuts a blue stone right-of-way adjacent to commercial premises that have a frontage to St. Georges Road, while the land to the north and east is used for residential purposes containing a mix of single and two storey developments. Mr. Zagami observed that large infill and existing developments are well represented in the area with notable three and four storey developments nearby. I agree with the Council officer's report that the zoning of the subject site appears to be an anomaly given its separation from the commercial premises and its juxtaposition with the allotments of the Residential 1 Zone. In that sense the residential development of the site can be regarded as a positive for the adjoining residential area compared to the range of alternatives that may have sought to take advantage of the Business 1 Zone.
There was little dispute between the parties that the proposal exhibited a satisfactory degree of consistency with the planning policy provisions of the Yarra Planning Scheme.
Of particular relevance is the fact that the contemporary design of the proposal provides a solution, which is quite distinct and unlikely to be confused with the remaining heritage elements within the street. In my view it does so, without causing the loss of any such element or imposing impacts that would prejudice the continuing viability of adjoining heritage property. I accept the evidence of Mr. Zagami of the proposal's compatibility with the development guidelines for heritage places set out at Clause 22.02 of the Planning Scheme. I also note the Council officer's detailed consideration of the proposal under this Clause and the favourable assessment made, save for the third storey element of the proposal.
Mr. Vorchheimer identified the two primary issues that arise in relation to the bulk of the building, which concerned the setback of the dwellings from the windows of Mr. Field's property to the east and the setback and extent of bulk expressed to the private open spaces of the dwelling to the east and to the south. Having considered the plans and submissions and inspected the site, I agree with Council that it would be appropriate to lower the height of the boundary wall from the 3 metres shown on the application plans to a height of 2.7 metres.
It is inevitable that such a narrow site providing two on-site car parking spaces for each dwelling at ground floor level will have a high site coverage, in this case 80%. Although that figure and the density of the development are not typical of dwellings in Barkly Street, they are not unreasonable given the highly urbanized nature of the site and its Business 1 zoning.
The visual dominance of the third level, which is clearly Council's major concern in relation to the proposal, is moderated by the substantial setback of the upper floor from both the Barkly Street and southern (rear) boundaries. On the western side the height of the parapets of the shops fronting St. Georges Road and the separation provided by the right-of-way will ensure that the proposed development and the third level will at best be a recessive background element rather than a dominant form.
I have therefore found that the third level will not have an adverse impact on the streetscape of either Barkly Street or St. Georges Road.
The sections provided in the architectural drawings of the proposal demonstrated that the setbacks provided at the first and second floor levels exceeded those required under the provisions of the Good Design Guide. The sections further showed, even before allowing for the reduction in the ground floor wall height on the east side, that the west facing windows of Mr. Field's residence would receive adequate exposure to daylight and would not be subject to substantial shadow until after 2pm.
Although the ground level rear private open space of dwelling 2 will be subject to substantial shadowing from the proposal itself, the screened terraces at first and second floor levels will provide worthwhile additional outdoor space opportunities.
The rear private open space of Mr. Field's residence will be subject to shadowing in the afternoon but examination of the shadow diagrams indicates that the extent of shadowing complies with the technical requirements of the Good Design Guide and cannot be considered to unreasonably affect the amenity of the adjoining dwelling.
I consider that the landscaping proposal prepared by Habitat Landscape Design should form the basis of a landscape proposal for the development subject to the satisfaction of the Responsible Authority. Although the applicant had already agreed to delete the ensuite bathroom on the second floor in order to increase the setback of the building at the third level, a condition of the permit will require that further modification of the plans.
10. I have therefore concluded that the design is a visually stimulating, attractive, modern piece of architecture that responds to the challenges of the site and its context. It provides two dwellings with good standards of internal amenity and functionality and good parking provision on an unusually constrained site. The proposal is well mannered in its relationship to adjacent properties and land uses.
11. Accordingly, I will order that a permit issue.
_____________________________
Domand Nominees Pty Ltd
Yarra CC [2002] VCAT 1617
The decision of the Responsible Authority was set aside. A permit was granted and directed to be issued for the construction of two three-storey dwellings, subject to 18 conditions including modifications to plans (deletion of ensuite bathroom to increase setback, reduction of eastern boundary wall height to 2.7m, provision of screening, materials schedule, landscape plan, and various construction and amenity conditions).