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[2003] VCAT 827
plaintiff. The request to review the Responsible Authority's decision to refuse a permit was allowed; the Responsible Authority was directed to issue a permit for the two-dwelling development subject to...
The owner sought review of the City of Greater Dandenong's refusal to permit two double-storey dwellings on a 749m2 lot. During the VCAT hearing the parties circulated amended plans, the Tribunal allowed substitution of those plans, and the parties resolved the primary issue about the upper-level bulk by agreement. The Tribunal allowed the review and directed the Responsible Authority to issue a permit subject to detailed conditions implementing the agreed design changes and other requirements (see Reasons [7]–[10] and the Orders).
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1,532 words · generated 13/09/2026
This was a VCAT Planning and Environment List review proceeding (VCAT ref P2677/2003) in which Ms Rafaela Dupljak sought review of the City of Greater Dandenong's refusal to grant a permit to demolish an existing single-storey dwelling and construct two double-storey dwellings at 1034 Heatherton Road, Noble Park. The application was brought under s.77 of the Planning and Environment Act 1987 (see Reasons [1]). The hearing occurred on 3 July 2003 before Member H W Terrill.
1 cited instrument linked from this judgment.
The Tribunal record sets out the factual context: the site is a rectangular 749 m2 lot with 17.07 m frontage, slight fall northwards, and a single-storey weatherboard dwelling set back about 8.15 m from the street (see Reasons [2]). The proposed development comprised two double-storey dwellings with a maximum height of approximately 7.8 m and site coverage of about 39% (see Reasons [3]). As the land is in a Residential 1 Zone, a permit was required to construct more than one dwelling on the lot (see Reasons [4]–[5]).
Procedurally, the applicant circulated amended plans (Rev 1 dated 4 April 2003). The Tribunal permitted substitution of those plans where no objection was raised, relying on Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal 1998 Act (see Reasons [7]). During the hearing the parties sought an adjournment for further discussion; after that the Tribunal was advised that the parties had effectively resolved the major outstanding concern, the upper-level bulk of Dwelling 2, and had agreed draft conditions. The Tribunal recorded the outcome as “virtually a consent agreement” and allowed the request to review the refusal, directing the Responsible Authority to issue a permit with detailed conditions (see Reasons [8]–[10] and the Orders).
The Orders set out a detailed schedule of conditions (Conditions 1–15) requiring amended endorsed plans and a long list of design, privacy, landscaping, drainage, energy-rating and construction requirements.
The decision is short and essentially procedural and consent-based. Two legal features determine the outcome from the Tribunal's reasons:
Jurisdiction to review: The Tribunal explicitly frames the proceeding as a review under s.77 of the Planning and Environment Act 1987 (see Reasons [1]). That statutory provision is the foundational rule giving the Tribunal competence to rehear or review decisions of a Responsible Authority in planning matters. The decision does not analyse s.77 in depth because the jurisdictional basis was not in dispute.
Procedural substitution and consent resolution: The Tribunal relied upon the procedural power in Clause 64 of Schedule 1 of the VCAT Act to substitute amended plans where the plans had been circulated and there was no objection (see Reasons [7]). That substitution permitted the parties to negotiate using the revised plans as the operative documents. After a short adjournment the parties resolved the central issue (bulk of Dwelling 2's upper level) and agreed draft conditions that would mitigate the planning concerns (see Reasons [8]–[10]). The Tribunal accepted that agreement and recorded the consent-like outcome in the Orders.
In short, the Tribunal's decision rested primarily on the combination of (a) its statutory review jurisdiction, (b) procedural power to update application plans mid-proceeding when unopposed, and (c) the fact that the responsible authority's planning concerns had been addressed by amendments and agreed permit conditions. The decision contains no extensive independent evaluative reasoning about planning merits; rather it records a negotiated resolution and implements it by directing the Responsible Authority to issue the permit with the detailed conditions set out.
Before: The judgment does not purport to change or develop the law. It applies well-established procedural provisions, the Tribunal’s statutory review jurisdiction under the Planning and Environment Act and the VCAT Act procedure for substitution of documents, to the facts. The decision does not interpret novel points of planning law, nor cite or overrule precedent.
After: The decision functions as an example of VCAT practice in cases where parties reach agreement through negotiation during the hearing. It demonstrates that where amended plans are circulated without objection, the Tribunal will ordinarily permit substitution under Clause 64 Schedule 1 of the VCAT Act (see Reasons [7]). It also shows the Tribunal’s willingness to record and implement agreed design changes and conditions by directing the issue of a permit, effectively operating as a consent order (see Reasons [10] and Orders). The decision is therefore more useful as a practice note than as a statement of new legal principle.
Reasons [1]: "This is an application is brought under s.77 of the Planning and Environment Act 1987, to review a decision of the Responsible Authority to refuse to grant a permit for a two (2) dwelling development."
Plain English: The applicant used the statutory right to ask VCAT to review a council's refusal to allow two houses on the lot.
Reasons [7]: "Mr Radisich applied to substitute amended plans as the application plans. They had been circulated and as there was no objection, the substitution of plans, Rev 1 of three sheets dated 4 April 2003 was permitted in accordance with Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal 1998 Act."
Plain English: The applicant gave the Tribunal revised drawings and, since no one objected, the Tribunal accepted them as the official plans for the case under the VCAT procedural rule.
Reasons [10]: "The conditions and other minor matters were discussed and the outcome is virtually a consent agreement as detailed in the decision above."
Plain English: The key issues were worked out between the parties during the hearing and the Tribunal recorded and enforced that agreement by ordering a permit with specified conditions.
Orders (Conditions 1(a), 1(p), and 2–15): The Orders list many specific technical and design requirements, for example requiring a reduction of the first-floor area of Dwelling 2 to reduce visual bulk (Condition 1(a)), planting of established canopy trees within the private open space of each dwelling (Condition 1(o)), and submission of a four-star energy rating (Condition 2).
Plain English: The Tribunal required specific amendments to the design (e.g., reduce upstairs bulk, add screening and landscaping, adjust garage sizes and access, manage drainage, and meet energy-rating standards) before a permit would be finalised or the building could be occupied.
This decision is applicable as a practical example where:
In such circumstances, the Tribunal has demonstrated willingness to permit substitution of amended plans and to direct the issue of a permit reflecting the negotiated outcome.
The judgment itself contains no discussion of subsequent treatment by higher courts or later tribunal decisions. This VCAT decision is an administratively focused disposition recording a negotiated outcome. It is not framed as a precedent-establishing judgment on legal principle. Practitioners seeking to rely on it for procedural precedent should note that it records routine application of Clause 64 Schedule 1 VCAT Act and the Tribunal’s power to impose or direct conditions as part of a review outcome; any broader reliance should be supported by checking for later decisions that consider substitution of plans, consent orders, or the Tribunal’s approach to negotiated outcomes.
This decision leaves several practical and jurisprudential points not resolved in any depth:
Practitioners relying on this decision for procedural strategy should therefore treat it as illustrative of case management and consent implementation by VCAT rather than as authoritative on contested planning merits.
DISCLAIMER: This is general legal information only and not legal advice. I can make mistakes. Before you act on, rely on, or use this analysis or any draft, get a qualified Australian lawyer to check it.
The request to review the decision of the Responsible Authority to refuse to grant a permit for a two (2) dwelling development is allowed. The Responsible is directed to issue a permit with the following conditions:
1. Before the development starts, three (3) copies of an amended plan/plans drawn to scale and dimensioned, 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 plans submitted with the application, or some other specified plans, but modified to show:
(a) A reduction in the first floor area to Dwelling 2 to allow for a softening in the visual bulk, mass and scale of the development, by the removal of the east bedroom 1 and a rearrangement of the first floor bathroom and toilet.
(b) Lighting measures, radius dimensions at changes in direction, and width dimension within the internal accessway.
(c) All internal garage dimensions to accord with Standard B16 of Clause 55.03-11 of the Greater Dandenong Planning Scheme.
(e) Fixed trellis along the existing 1.65 metre high timber paling fence on the western and southern boundaries, at 1.7 metres above floor level to private open space areas to each dwelling.
(f) An adequate storage facility is to be provided for Unit 2, as the rear garage roller door will conflict with the proposed storage location.
(g) Complete and accurate elevation plan of Unit 1 south facade and Unit 2 north facade, with appropriate screening measures incorporated to first floor bedroom windows.
(i) Obscure glazed windows to all bathrooms an each dwelling.
(j) All internal fencing to be 1.8 metres in height, using timber paling.
(k) Patterned and coloured concrete or an alternative treatment to the internal accessway.
(l) The Unit 1 ground floor study window located along the eastern elevation is to be deleted or alternatively amended to comply with Standard B15 of Clause 55.03-10 of the Greater Dandenong Planning Scheme and correctly detailed upon the floor plan.
(m) The Unit 2 first floor bathroom/bedroom window located along the eastern elevation is to be deleted or alternatively, correctly detailed upon the floor plan.
(n) The deletion of the bathroom and water closet windows to the ground floor of Unit 2 and replacement with skylights and mechanical ventilation.
(o) A comprehensive and accurate landscape plan, scheme and schedule in accordance with Condition 13 of this permit. Established tree (canopy) species of a mature height between 4-10 metres (2-3 metres at time of planting) are to be located within the private open space areas to each dwelling.
(p) Additional and semi-mature landscape species along the western boundary and frontage of the land - in particular to obscure the visual impact of the private open space area of Unit 1.
All to the satisfaction of the Responsible Authority.
2. Prior to the endorsement of plans, the submission of a four star energy rating, using the Sustainable Energy Authority of Victoria 'First-Rate' system or equivalent to each dwelling, including all appropriate documentation as approved by an accredited house energy rater.
3. The development as shown on the endorsed plans must not be altered without the further written consent of the Responsible Authority.
4. Once the development has started, it must be continued and completed all to the satisfaction of the Responsible Authority.
5. The buildings must not be occupied until all buildings and works and the conditions of this permit have been complied with, unless with the further written consent of the Responsible Authority.
6. Floor levels shown on the endorsed plan/s must not be altered or modified without the further written consent of the Responsible Authority.
7. Provision must be made for the drainage of the site including landscaped and pavement areas, all to the satisfaction of the Responsible Authority.
8. Stormwater discharge is to be retained on site to the pre-development level of peak stormwater discharge. Approval of any retention system is required by the City of Greater Dandenong, the Responsible Authority, prior to the issue of a Building Permit.
9. The walls on the boundary shall be completed, with face brickwork on the external side, all to the satisfaction to the Responsible Authority.
10. Before the use of the land starts, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
(a) Constructed in accordance with the endorsed plan/s;
(b) Properly formed to such levels that they can be used in accordance with the plans;
Parking areas and access lanes must be kept available for these purposes at all times.
All to the satisfaction of the Responsible Authority.
11. Standard concrete vehicular crossing/s must be constructed to suit the proposed driveway/s in accordance with Council's standard specifications and any vehicle crossing/s no longer required must be removed and the land footpath and kerb and channel reinstated, all to the satisfaction of the Responsible Authority.
12. Access to the site and any associated roadworks must be constructed to the satisfaction of the requirements of VicRoads and the Responsible Authority.
13. A landscape plan for the site prepared by a person suitably qualified in landscape design and in accordance with Council's Landscape Guidelines for Town Planning Applications shall be submitted to the Responsible Authority. The details of that person's qualifications must be given and the plan must show existing vegetation to be retained, all proposed trees, shrubs and ground cover, including the botanical names and sizes at maturity of all plants and the location of all areas to be covered by grass, lawn or other surface material to be specified. The use of the land shall not be commenced until such time that the submitted plan has been approved by the Responsible Authority.
An endorsed copy of the approved plan shall form part of this permit.
14. Before the use of the land starts, landscaping works and shown on the endorsed plan/s must be completed and then maintained, all to the satisfaction of the Responsible Authority.
(a) The development does not start within two (2) years of the date of this permit; or
(b) The development is not completed within four (4) years of the date of this permit.
Before the permit expires or within three (3) months afterwards the owner or occupier of the land may in writing request the Responsible Authority to extend the expiry date.
Mr Joseph Nasr, Senior Town Planner assisted by Mr Tony Casciere represented the Responsible Authority.
Mr T C Radisich, Town Planning Consultant represented the Permit Applicant.
1. This is an application is brought under s.77 of the Planning and Environment Act 1987, to review a decision of the Responsible Authority to refuse to grant a permit for a two (2) dwelling development.
The land is located on the southern side of Heatherton Road at an approximate distance of 700 metres west of the Noble Park Shopping Precinct. The land is rectangular in nature with a frontage of 17.07 metre along Heatherton Road and a depth of 43.89 metres, with an overall land area of 749m2 . The land has a slight fall of approximately 400mm from the south boundary to the north boundary. It is in the locality bounded by Princes Highway to the north, Chandler Road to the east, Cheltenham Road to the south and Springvale Road the west.
The land is occupied by a singe storey detached weatherboard dwelling, which appears to have been constructed during the mid 1920's and set back 8.15 metres from the street frontage. A vehicle crossing is located on the western side of the property's frontage, which provides access to a driveway. A single carport is located between the existing dwelling and the western property boundary. A large private open space area is located to the rear of the dwelling, with a small outbuilding located within the rear yard. Minimal vegetation is evident on the land.
An existing 1.8 metre high timber paling fence is located along the
3. The proposal, also taken from Mr Nasr's submissions:
* the demolition of the existing single storey dwelling, and
* the construction of two (2) double storey dwellings, with associated car parking and landscaping.
The proposed development (Units 1 and 2 respectively), are similar in design and layout, incorporating rendered brickwork to external walls, with a dominate tiled roof form at 45 degree pitch, incorporating the majority of the upper level habitable rooms. The maximum building height of both dwellings equates to approximately 7.8 metres, with overall site coverage of 39%.
The ground floor of Unit 1 incorporates a living, dining, study, kitchen with laundry, bath and water closet. Two bedrooms and a separate bath are located on the first floor. Unit 1 is to have a setback of 8.53 metres from Heatherton Road and a private open space area of 40 square metres, orientated facing west, with a minimum dimension of 3.05 metres.
The ground floor of Unit 2 also incorporates a living, dining, study, kitchen, family, laundry, bath and water closet. Three bedrooms, separate bath and water closet are located on the first floor. Unit 2 is to have a setback of 4 metres from the southern boundary that includes the private open space area of 75 square metres, with a minimum dimension metres.
4. The subject land and surrounding land is zoned Residential 1 under the Greater Dandenong Planning Scheme and no overlay controls apply. The land abuts a Category "1 Road Zone".
5. A permit is required to construct more than one dwelling on the land.
6. The grounds of refusal and reasons for this request is:
* I think I've been treated unfairly and dishonestly.
7. Mr Radisich applied to substitute amended plans as the application plans. They had been circulated and as there was no objection, the substitution of plans, Rev 1 of three sheets dated 4 April 2003 was permitted in accordance with Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal 1998 Act.
8. Following the commencement of the hearing, Mr Radisich indicated that the parties had been in discussion and almost resolved the issues and sought a brief adjournment, which was permitted.
9. Following that adjournment, the Tribunal was advised that the matter of Dwelling 2 upper level bulk had been resolved and the parties agreed on the new layout and draft conditions that had been circulated apart from altering condition 1(a) to reflect the above alteration.
10. The conditions and other minor matters were discussed and the outcome is virtually a consent agreement as detailed in the decision above.
Dupljak
Greater Dandenong CC [2003] VCAT 827
The request to review the Responsible Authority's decision to refuse a permit was allowed; the Responsible Authority was directed to issue a permit for the two-dwelling development subject to detailed conditions (see Orders 1–15), including amended endorsed plans, design modifications to reduce visual bulk, screening and obscure glazing, landscaping, drainage, garage dimensions, energy rating, and expiry provisions.