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[2003] VCAT 147
respondent. The Tribunal affirmed the Responsible Authority's decision to refuse Permit Application No. 20026181 for three two-storey dwellings at 1375 High Street Road, Wantirna South; no permit to be issued...
VCAT reviewed Knox City Council's refusal of a permit for three double-storey dwellings at 1375 High Street Road. The Tribunal inspected the site and found that the proposed private open space, especially a narrow shaded strip beside Dwelling 2, was too small, poorly shaped and too shaded to meet the Good Design Guide objectives for secluded private open space. While access/driveway design could be modified to satisfy VicRoads, on-site visitor parking remained unresolved. Because the core design problems could not be readily fixed by permit conditions, the Tribunal affirmed the refusal and suggested the applicant should prepare a modified design (potentially with more upper-floor area and reduced ground-floor footprints) in collaboration with Council, [22]-[36].
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This is a VCAT Planning and Environment List review of Knox City Council's refusal to grant a planning permit for three two-storey dwellings at 1375 High Street Road, Wantirna South. The applicant (architect Mr D Farrington acting for the landowner Mr M Silva) lodged a review under s.77 of the Planning and Environment Act 1987; the hearing was before Member Peter J Avery on 17 October 2002, with an order dated 31 January 2003. The Tribunal affirmed the Council's refusal and ordered that no permit be issued for the development as submitted (ORDER; [1], [36]).
Council refused the application by notice dated 11 February 2002 on five grounds: inconsistency with the Good Design Guide, minimal private open space providing poor amenity, internal and external overlooking, unsatisfactory visitor car parking, and front setback/character concerns ([2]). The application was referred to VicRoads which, by letter dated 16 January 2002, raised no objection subject to five conditions ([19]). The Tribunal inspected the site and surrounding neighbourhood and considered the planning scheme provisions and the Good Design Guide as the primary benchmarks ([7], [13]-[15]).
The Tribunal’s decisive finding was that the shapes, dimensions and locations of the proposed secluded private open spaces, especially the narrow, shaded space adjacent to Dwelling 2, were unacceptable and inadequate for likely family occupants and therefore failed to meet the objectives of Element 9 of the Good Design Guide. Because that core design failing could not be remedied by permit conditions, the Tribunal refused to attempt to draft conditions and affirmed the refusal, while encouraging re-design and collaboration between the parties ([22]-[26], [32]-[36]).
The Tribunal's decision rests on an application of planning scheme requirements and the Good Design Guide's objectives to the physical realities of the site and the submitted plans.
Benchmark: Good Design Guide objectives. The Tribunal explicitly applied Element 9 of the Good Design Guide (secluded private open space), quoting the Guide’s objectives and the characteristics that secluded private open spaces should have, adequate area/dimensions and slope for likely residents, access to some direct sunlight, convenient access from the main living room, and being appropriate to the locality ([25]).
Facts to rule application. The Tribunal reviewed the plan dimensions and the site context. Unit 1's rear secluded private open space was 27 m2 and narrow, and could be augmented or made secluded by using some front setback area, planting or fencing, the Member considered that potentially acceptable ([23]-[24]). By contrast, Unit 2’s private open space was 2–3 metres wide along 17 metres and would be significantly shaded throughout the day by the new buildings; while that area might satisfy a narrow technical metric, it would not deliver the objectives in practice, sunlight, usable recreation space or adequate amenity ([22], [25]-[26]).
Conditions versus redesign. The Tribunal accepted that some access and driveway modifications could be designed to satisfy VicRoads' safety concerns (a two-way crossover with widened internal driveway), but found the private open space defects and the unresolved visitor parking issue could not be adequately cured by conditions. The Member therefore refused to attempt to draft detailed conditions to rewrite the design, preferring to require a redesigned proposal if the applicant wished to pursue the development ([29]-[33]).
Weight to neighbourhood character. Although the Tribunal did not accept Council's case that Unit 1 must be set back behind the public tree reserve, it did see the need for adequate landscaping and canopy trees and noted that reconfiguration might deliver a better character response ([28], [35]). That contextual assessment fed into the finding that the scheme as drawn failed to respond to site characteristics and preferred neighbourhood character ([36]).
In short, the decision turned on the conclusion that compliance with technical measures alone is insufficient where the design, in its real-world form, fails to achieve the Guide’s objectives, especially sunlight, usable space and integration with living areas.
Before this decision: VCAT decision-making in residential redevelopment matters routinely balanced strict metric compliance with broader design objectives in policy instruments like the Good Design Guide and scheme clauses. The Tribunal had jurisdiction under s.77 to review Council refusals and had discretion to impose conditions where appropriate.
After this decision: Farrington v Knox CC exemplifies a clear articulation of the principle that meeting a 'technique' or a narrow measurement in the Guide is not determinative; the Tribunal will interrogate whether the objective is genuinely achieved. The decision reinforces that:
This judgment thus reinforces the primacy of objective-focused design assessment over formulaic box-ticking in medium-density development appeals.
"[I have] formed the opinion that the shapes, dimensions and locations of the open space areas (especially adjacent to Dwelling 2) are unacceptable and inadequate..." ([22]).
"Dwellings should have secluded private open spaces which: are adequate in area, dimensions and slope...have access to some direct sunlight...have convenient access from a main living room; are appropriate to the locality." ([25]).
"It would be inappropriate for me to attempt to translate the design changes needed into words, and to try to develop and impose the additional conditions which I consider would be needed." ([33]).
"In light of the lack of objections from neighbours...it is suggested that the owner...and Council officers should work...to arrive at a modified design..." ([35]).
Final disposition: "I have decided that the appropriate course of action is to uphold the decision...for reasons that insufficient and inappropriately located secluded private open space areas are proposed..." ([36]).
This decision is most instructive where:
When those factors are present, Farrington suggests that a tribunal will look beyond metric compliance and insist on demonstrable achievement of amenity objectives.
This deep dive is limited to the reasoning and text of Farrington v Knox CC itself. The decision explicitly applies the Good Design Guide and planning scheme clauses to the facts; it does not purport to create new statutory tests nor to overrule higher authority. The Tribunal’s approach, emphasising objective-focused assessment over narrow technical compliance and declining to cure layout defects by conditions, is consistent with established planning practice. Users should review any subsequent VCAT or court decisions and local scheme amendments to see how this particular decision has been cited or followed in later reviews.
Readers should note that Farrington is a VCAT Member’s decision in the Planning and Environment List; it carries persuasive weight in comparable tribunal matters but is not binding precedent in the way a superior court judgment is. Any assessment of how later courts treated Farrington must examine later decisions and is not undertaken here.
Several questions remain by their nature contextual or for further development in subsequent decisions:
How will tribunals balance situations where a proposed redesign could be achieved by detailed conditions (e.g. specific planting and fencing) versus where a fundamental reconfiguration is required? Farrington provides an example where the Tribunal declined to impose conditions, but each case depends on the particular defects ([33]).
What level of evidence is needed to prove that a narrow open space will in fact be sufficiently sunlit and usable? Farrington emphasises sunlight and usability as objective considerations, but precise thresholds remain fact-dependent ([25]-[26]).
How should tribunals weigh VicRoads' conditional no-objection alongside on-site visitor parking concerns and the local context of high car ownership? Farrington treats VicRoads’ advice as enabling safe access design but still finds visitor parking a relevant unresolved issue ([19],[29]-[31]).
To what extent can existing municipal initiatives (for example, tree reserves or neighbourhood precinct policies such as Amendment C5 referenced by Council) be relied upon to require larger front setbacks without public acquisition? Farrington rejects imposing larger setbacks based on public tree reserves without acquisition, indicating limits to using adjacent public reserves as a planning expectation ([28]).
How should tribunals evaluate and weight preliminary concept sketches supplied by applicants that might overcome design failings? Farrington found the applicant’s original sketch conceptually promising but not fully developed; whether tribunals should adjourn to allow redesign or insist on fresh applications is an open procedural question ([34]-[35]).
These questions underline that Farrington is a context-specific application of broader design principles rather than a formulaic test; it points to the Tribunal’s practical, fact-driven approach.
Note: This analysis extracts and summarises the Tribunal’s reasoning in Farrington v Knox CC [2003] VCAT 147. It does not provide legal advice. Before you rely on this summary, act on it, or use any draft based on it, get a qualified Australian lawyer to check it. I can make mistakes.
Planning and Environment List; s.77 Planning and Environment Act 1987; Knox Planning Scheme; Residential 1 Zone; Abuttal to Road Zone (Category 1); Three double storey dwellings proposed; Good Design Guide considerations, private open space areas, car parking opportunities, overlooking problems, setbacks and fencing.
The Order of the Tribunal is that the decision of the Responsible Authority to refuse Permit Application No. 20026181 for three two-storey dwellings on the site at 1375 High Street Road, Wantirna South is affirmed and no permit is to be issued for the development as submitted.
_____________________________
For the Applicant for Review: Mr Derek Farrington, Architect, appeared on his own behalf as Applicant, representing the landowner, Mr M Silva.
For the Responsible Authority: Mr Simon Ilsley, Town Planner, appeared for the City of Knox.
1. This is an application pursuant to s.77 of the Planning and Environment Act 1987, brought by the Permit Applicant, Mr D Farrington, to review the decision of the City of Knox to refuse to grant a planning permit for three double-storey dwellings on the site at 1375 High Street Road, Wantirna South.
2. The grounds given on the Notice of Refusal issued 11 February 2002 were:
1. The design and layout of the development is not consistent with the objectives, criteria and techniques of The Good Design Guide for Medium Density Housing.
2. The private open space areas are all minimal in area and dimensions and provides poor amenity for the occupiers of the dwellings.
3. The proposed dwellings will result in internal overlooking between habitable room windows and external overlooking to adjoining properties habitable room windows.
4. The car parking arrangements are unsatisfactory in regard to visitor car parking provision.
5. The design of the development does not add to the neighbourhood character of the area. In particular, the front setback is not consistent with other front setbacks in the area and there is little opportunity to provide landscaping which maintains the garden character of the neighbourhood or replace the trees to be removed as part of the proposed development.
3. The grounds given by the Applicant for Review dated 9 April 2002 were:
1. The design and layout of the development is consistent with the objectives, criteria and techniques of the Good Design Guide.
2. The private and communal open space is in accordance with the Good Design Guide.
3. The car parking arrangements are in accordance with the Good Design Guide.
4. The design and development is not out of character with the neighbourhood character.
5. The front setback is in accordance with the Good Design Guide and the same as the existing dwelling.
4. The Responsible Authority advised that the review application as lodged with the Tribunal was outside the statutory sixty day time limit, and the Applicant was so advised. I do note, however, that there is on the Tribunal file a letter from the Tribunal dated 11 April 2002, acknowledging receipt of the application for review, and on this basis it would appear that the application for review had been lodged within the sixty day statutory time limit. It was understood that meetings had been held by the Permit Applicant with Council's planners and traffic engineer following the refusal notice being issued, attempting to overcome Council's concerns, without a satisfactory resolution being achieved. In any event, on 17 July 2002, Deputy President Horsfall ordered, pursuant to s.126 of the VCAT Act 1998, that the time be extended to the date on which the review application had been lodged.
5. The proposal is to redevelop the site with three double-storey brick veneer and rendered dwellings, each with pitched tile roof. On the ground floor of each of the three proposed dwellings, it is proposed there would be one bedroom with ensuite, a kitchen, family room, living room, meals area, laundry and toilet. Two further bedrooms are proposed on the upper floor, as well as a rumpus room and bathroom. Double garages are proposed for each dwelling with driveway access to them along the western boundary, from the existing three metre wide crossover from High Street Road. The plans showed a `1500mm high brick pier and brick infill wall' (fence) on the front title boundary. The three dwellings vary in ground floor areas between 92.72 square metres and 111.08 square metres, with the upper floors of each being approximately 49 square metres in area.
6. The front setback proposed for the front dwelling (Unit 1) is nine metres (stated to be the same as the existing dwelling on the site), however there is a tree reserve 12 metres wide existing to both the east and west of the review site, presumably set aside at the time when the surrounding land to the review site was subdivided, and there is mounding, lawn and trees existing within these tree reserves today.
7. A number of photographs were provided to the Tribunal by both parties, and following the hearing, the Tribunal undertook a site inspection as well as a view of the neighbourhood generally.
8. The site is rectangular in shape on the north side of High Street Road, one property to the west of Jenola Parade, Wantirna South.
9. It has a frontage of 18.29 metres, a depth of 56.33 metres and an area of approximately 1030 square metres. There appears to be a two metre wide drainage and sewerage easement along and within the northern boundary of the land, however it seems to be unoccupied by services at present, based on record plans tabled and provided to the Tribunal by Mr Farrington.
10. The existing house on the review site is weatherboard and appears to be derelict and unoccupied, and would need extensive repairs to become liveable. It is set back approximately nine metres from the property frontage based on plans of survey used by Mr Farrington, with several trees (elm, silver birch and liquidamber) within the front yard. The large backyard is presently covered with long uncut grass, and there are no trees within the rear yard at present.
11. The site is practically flat with an existing 1.7 metre high brick fence to High Street Road, and 1.7 metre high paling fences on all other boundaries. Apart from the tree reserves, there is a concrete footpath in High Street Road, which swings around the review site in its alignment, and there is currently no concrete kerb or gutter along either side of the High Street Road pavements which provide two carriageways of traffic in both directions at the present time.
12. The surrounding properties and neighbourhood generally have been subdivided and built out with modern brick and brick veneer homes, both single and double storey. To the north and west, the adjoining houses are both single storey and face Mosman Close (to the north-west) and are set back 1.7 metres and 1.85 metres respectively. To the east of the review site, there are two two-storey houses which face eastwards towards Jenola Parade, with their rear yards (approximately 10 metres to 15 metres deep) adjoining the eastern fence of the review site.
13. The site and surrounding properties are all included within the Residential 1 Zone, with the review site having frontage to High Street Road which is in a Road Zone (Category 1).
14. Planning permits are accordingly required pursuant to the provisions of Clause 32.01, for the construction of two or more dwellings on a lot, and Clause 52.29 (for the creation or alteration of access to a road in a Road Zone), with the Roads Corporation being nominated as a mandatory referral authority for such applications. Design guidelines are set out in Clauses 32.01-4, 52.29 and 65, and the application must also be accompanied by a site analysis and a design response as described in Clause 52.04, with the Responsible Authority and this Tribunal on review needing to consider as appropriate the Good Design Guide for Medium Density Housing Revision No. 2 April 1998 (and any local variations which may have been incorporated into the scheme).
15. Mr Ilsley for the Council also referred me to Clauses 14.02 and 16.02 (in the SPPF) and to key aspects of the Council MSS. He also referred to exhibited Amendment C5 to the Knox Planning Scheme which was intended to introduce policies for neighbourhood precincts throughout the municipality, with the review site proposed to be included in a `Villa Court Precinct No. 1'. He addressed some of the characteristics, desired character elements, and perceived threats to the desired future character set out in the `Neighbourhood Character Study for Knox', and I was provided with a photocopy of the relevant pages for my reference purposes.
16. I do not believe it is necessary to repeat here the complete passages of any of the above clauses, however I will refer to specific objectives, and other aspects, during my analysis of the key issues later in these reasons.
17. Both Mr Ilsley and Mr Farrington provided in their written submissions chronological summaries which were generally consistent with each other, except that Mr Farrington provided me with additional information relating to an earlier preliminary approach to Council (using a sketch which he supplied to me), prior to lodging the formal application in August 2001. I will also refer to this sketch plan in my analysis of the issues.
18. The application was advertised on adjoining land owners and occupiers, and a notice was placed on the site. There were no objections received by the Responsible Authority.
19. The application was also referred, as required, to VicRoads, and they informed Council by a letter dated 16 January 2002 that subject to five nominated conditions being included on any permit which was determined to be granted, that they would have no objection to the proposed scheme of development indicated on the plans provided.
20. Having regard to the various submissions made by the parties both in writing and orally at the hearing, the key issues to be considered and determined by me are:
(A) Whether all proposed open spaces are suitably located, adequate in dimensions and area for both landscaping and use for recreational purposes by future residents, without adversely impacting on others?
(B) Whether access to and from the car parking facilities proposed is able to be provided, and will sufficient parking be available for both residents and visitors?
(C) Whether sufficient conditions can be imposed on a permit to overcome any perceived shortcomings of the design and development proposed?
21. For reasons which I will now attempt to explain, I have determined that the decision of the Responsible Authority to refuse the permit was reasonable, and in my view should not be overturned.
22. Following my inspection of the site and consideration of all submissions made, and having reviewed all material held on file, I have finally formed the opinion that the shapes, dimensions and locations of the open space areas (especially adjacent to Dwelling 2) are unacceptable and inadequate for use by residents likely to be occupying a family home with three bedroom accommodation.
23. I was not persuaded by the arguments advanced by Mr Farrington that the design on the drawings would enable extensive or sufficient planting of vegetation within the areas around the dwellings, to achieve the Council desired result, or a satisfactory outcome for the development of the scale proposed. I was not as concerned about the minimal area of 27 square metres of secluded private open space to the rear (east) of the front dwelling, as I was with the private open space area to the east of the second dwelling (Unit 2).
24. I consider that it would be likely that part of the 27 square metres may be required in the future for storage for service needs of the residents, however it could have been augmented by adding a portion of the front setback area adjacent to the proposed living room, and by selected planting and possibly fencing, that area may be able to be made secluded and out of view from both the public and other residents.
25. The open space area to the east of Dwelling 2 however, will be significantly shaded throughout the day, and only being between two and three metres in width over a length of 17 metres, while it might comply with the relevant technique of the GDG, I agree with Council who expressed the view that it would not achieve the stated objectives of Element 9 of the Good Design Guide, which include:
1. Provide sufficient private open space for the reasonable recreation, service and storage needs of residents.
2. Provide secluded private open spaces which receive sunlight and are well integrated with living areas.
Dwellings should have secluded private open spaces which:
* are adequate in area, dimensions and slope for the likely residents;
* have access to some direct sunlight, at least during the warmer months of the year;
* have convenient access from a main living room;
26. Similar comments apply regarding the slightly better open space area to the north of Dwelling 3, which is also three metres wide over a length of 13 metres, and slightly less over the next five metres. This space will not however be subjected to shadowing to the same extent from the proposed new buildings, and it presents greater opportunities for planting significant vegetation, and to provide acceptable service areas and storage areas.
27. In terms of the communal open space areas, I perceive these to be generally very minimal, as I would expect the front setback area between the front of Unit 2 and High Street Road would not be communal in the true sense, rather it would be annexed to the front dwelling and maintained by the owners and residents of that dwelling. Similarly, the small garden areas available between the dwellings and the driveways would be probably maintained by the adjacent individual owners and residents, leaving the narrow garden bed to the west of the proposed coloured concrete driveway and the western fence as the only communal area.
28. In terms of canopy trees, I did not agree with the proposition advanced by the Council that it was justified that the front dwelling should be further set back from High Street Road, in a similar fashion to those dwellings on both sides which are set back behind the publicly owned tree reserve. Without acquisition by a public body, such a proposition is not justified in my opinion. Several existing trees could be retained and further opportunity would exist for additional canopy tree planting within the nine metres proposed to be set back by the subject proposal.
29. With regard to the second issue identified above relating to the vehicular access to and from the site and whether sufficient parking spaces for both visitors and residents will be available, I am satisfied from my inspection of the site and having regard to the arrangements which have clearly been made on a similar development to the east of Jenola Parade at 1387 High Street Road, that the proposed conditions nominated by VicRoads to provide a two-way vehicular crossover can be incorporated on modified design drawings, which would include the widening of the driveway within the site to a width of six metres for the initial six metre setback, and that this would enable safe movements to and from the site.
30. In terms of the need to provide additional visitors' car parking facilities on site, I am conscious that a total of six cars will be able to be parked on the site for the three proposed dwellings. I am not satisfied however that additional vehicles could be parked on the proposed driveways identified on the plans, in tandem behind the proposed garages of Units 2 and 3, without such vehicles having to be moved to enable vehicles parked within the garages to exit the site in a forward direction. One opportunity to provide for visitors to park on site (which was discussed at the hearing) would be to create a visitor car parking space or spaces within the front setback of nine metres of Dwelling 1. When considered in addition to the widening of the driveway to six metres, this would however further reduce the opportunities for landscaping and beautification. The fact that parking on High Street Road is presently not permitted, and having regard to the volumes of traffic along High Street Road at the time of my inspection, and noting that it is likely that further roadworks will be extended past this site in the future, this remains an unresolved issue. Certainly, it would be possible for visitors to park nearby in Jenola Parade, and it is acknowledged that visitors' car parking spaces are not required to be provided in terms of the Good Design Guide provisions for developments involving less than five new dwellings. Nevertheless, it is a relevant consideration, and one which I would suggest if a revised scheme is to be prepared and submitted in the future, that one additional car parking space for a visitor should be designed for this site as part of a redevelopment, and incorporated into a landscaping scheme which should be submitted with that application. I am aware that provision appears to have been made within the front setback of the property at 1387 High Street Road, which Council looked into at my request following the hearing, and by letter advised as follows:
Further to your request for details in relation to a 3 dwelling development at 1387 High Street Road, we advise that there was no specific condition imposed in relation to the width of the crossover. Approved plans show a 3 metre wide crossover. There exists no correspondence from VicRoads in relation to this development on Council's file.
31. Notwithstanding this advice, it is clear that a six metre (minimum) crossover measured at the property line has been constructed and a concrete area provided within the setback behind a wall built on the High Street Road boundary. Whether this was required by the Responsible Authority or not, or whether simply a practical response to the difficulties associated with parking and access from High Street Road, is unknown to me. In summary, I agree with Council that visitor car parking on High Street Road in this location is unacceptable and dangerous. I recognise the strength of the argument of Council that around 60 percent of households in Knox own two or more cars, and this level of car ownership and reliance on private vehicle use on a daily basis justifies the need for consideration of provision of visitor parking perhaps in excess of the normal standard supplied and set out in the Good Design Guide in certain locations such as the review site. This certainly would satisfy Objective 1 of Element 8 of the Good Design Guide.
32. With regard to the final issue regarding potential conditions which could be imposed to overcome these perceived shortcomings, and the fact that it was acknowledged during the hearing that the upper floor bedrooms of all three dwellings needed screening to protect loss of privacy and overlooking, I gave consideration to the adequacy of draft conditions tabled at the hearing by Mr Ilsley for Council, as well as the submissions of comments on them made by Mr Farrington by letter dated 17 December 2002 addressed to the Tribunal.
33. In view of the conclusions I have reached regarding the private open space areas, and the need for consideration to be given to the provision of at least one visitor car space on site, I have decided that it would be inappropriate for me to attempt to translate the design changes needed into words, and to try to develop and impose the additional conditions which I consider would be needed.
34. I reflected on the concept indicated on the preliminary plan which Mr Farrington supplied to the Tribunal, as being the concept originally discussed with Council planning officers. I note that all bedrooms were proposed at that time to be on the upper levels, and the garage ancillary to the rear dwelling proposed over the easement within the northern boundary, in the north-western corner of the site. Larger and better shaped secluded private open space areas were then possible, as the ground floor footprint was reduced of each of the three dwellings. Further, the rear dwelling was built to the eastern boundary. I must say that although the sketch plan was far from being fully developed, the concepts I have referred to do appear to overcome some of the shortcomings I have identified above in my reasons for supporting the Council decision.
35. In light of the lack of objections from neighbours, and in recognition of the potential of this site for redevelopment with three dwellings, it is suggested that the owner and his advisers, and Council officers, should work in a proactive fashion to arrive at a modified design which might include a greater upper floor area and a reduced ground floor area than those indicated on the plans forming this application. Overlooking and overshadowing aspects must be considered and respected and taken into consideration along with the requirements for landscaping and the outdoor use by future residents. I am sure that a more satisfactory outcome is possible.
36. I have decided that the appropriate course of action is to uphold the decision of the Responsible Authority to refuse to grant the permit applied for in this application, and to disallow the application for review for reasons that insufficient and inappropriately located secluded private open space areas are proposed which do not adequately respond to the characteristics of the site and the preferred neighbourhood character for the locality.
_____________________________
Farrington
Knox CC [2003] VCAT 147
The Tribunal affirmed the Responsible Authority's decision to refuse Permit Application No. 20026181 for three two-storey dwellings at 1375 High Street Road, Wantirna South; no permit to be issued for the development as submitted, [ORDER],[36].