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[2001] VCAT 1050
mixed. The Tribunal allowed the application for review in part. The decision of the Responsible Authority was varied. A permit was granted for three dwellings generally in accordance with the endorsed plans,...
The owners of 14 Sturdee Street applied for a permit to build three dwellings (two two-storey, one single-storey). Neighbour objectors sought review. The Tribunal found parking acceptable but identified neighbourhood character and front-elevation problems (two-storey frontage appearance, lack of shading, triangular porch). Rather than refuse the permit, the Tribunal varied the original decision by requiring design modifications: set the upper storey of the front dwelling back 1 metre and continue the lower roof across the frontage, add shading/eaves to western windows, and replace the triangular porch with a rectangular porch. The Responsible Authority was directed to issue the permit with those conditions (Order; Reasons).
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The City of Darebin issued a Notice of Decision to Grant a permit for three dwellings at 14 Sturdee Street, Reservoir (two double-storey at the front and centre, and one single-storey at the rear). Neighbour objectors S. and C. Finanzio sought a review at VCAT under section 82 of the Planning and Environment Act 1987. The objectors relied on grounds that the proposal was out of character with the neighbourhood (height, bulk and mass), that angular design elements were discordant, and that car parking and vehicle manoeuvring were inadequate (Grounds of Application; paras 1, Grounds).
1 cited instrument linked from this judgment.
A directions hearing separated out an associated covenant cancellation matter for a later hearing (paras 2-3). The Tribunal hearing (Member A. J. Quirk) received expert town planning evidence, photographs and submissions on 24 April 2001 (paras 10, hearing details). The Tribunal found that only two issues were central: neighbourhood character and parking (para 14). It concluded parking complied with the Good Design Guide and was not a reason to refuse the permit, but that the front two-storey dwelling required design changes to better meet local character guidelines and shading/energy considerations (paras 14, 17). The Tribunal allowed the review in part and varied the Responsible Authority's decision by imposing four modifications: the upper level of dwelling 1 to be set back 1 metre from the front lower wall with the roof continued across the frontage; provide appropriate eaves or other shading for western windows; delete the triangular front porch and replace it with a square/rectangular porch (Order; paras 17-18).
The Responsible Authority was directed to issue a permit in accordance with the Tribunal's order under s85(1)(b) of the Planning and Environment Act 1987 (Order).
Focus on planning merits and applicable local design guidance (paras 7-9, 15). The Tribunal evaluated the application against the planning scheme controls: the site is in a Residential A zone and Clause 32.01-4 requires assessment of multi-dwelling development against the Good Design Guide for Medium Density Housing; the Tribunal also used the Darebin Urban Character Study (Precinct G4) and its Guideline 5 concerning height and single-storey frontage appearance (paras 7-9, 15). The Judge engaged with the detailed local guidance rather than only considering generalities.
Two core issues, neighbourhood character and parking, were decisive (para 14). The Tribunal accepted that parking met the Guide's parameters: seven spaces for three three-bedroom dwellings, replacement of a vehicle crossing with kerb and channel enabling on-street parking, and driveway curvature allowing canopy planting (paras 14, 19). On that basis parking could not justify refusal.
On neighbourhood character the Tribunal concluded the front elevation of dwelling 1 need not cause refusal but required alteration to meet the single-storey appearance objective in the Guideline. The Tribunal was persuaded that the straight two-storey front wall with large windows and lack of shading would be discordant as assessed under Guideline 5. Rather than refusing, the Tribunal chose precise restorative measures: recess the upper storey 1 metre and extend the lower roof across the frontage to present a more single-storey appearance, replace an angular triangular porch with a conventional porch to better match local porch forms, and provide eaves/shading to western windows to address energy and amenity concerns (paras 15, 17-18).
The Tribunal separated covenant issues from the planning merits of the permit review and expressly ignored those matters in its decision (paras 11-13). A separate cancellation hearing was listed for the covenant matter, but the Tribunal did not allow the covenant issue to be determinative here.
The outcome reflects a merits-based balancing: approval for medium density development subject to design refinements to better implement policy objectives for local character and environmental amenity.
The decision operates within established planning process and policy considerations rather than creating new legal tests. The Tribunal:
There is no departure from prior legal precedent stated in the Reasons. The practical effect is to reinforce that where a proposal can be modified to satisfy local character guidelines and design objectives, the Tribunal will commonly prefer design modification over outright refusal, particularly when other technical matters (such as parking) meet guideline parameters (paras 14, 17-19). The decision therefore confirms the Tribunal's discretionary practice of tailoring permits by condition to reconcile development and local design objectives.
"There really are only two major issues needing to be addressed in Mr Tweedie's submission and they are neighbourhood character and parking." [14]
"I am not at all concerned with the parking issue as the proposal results in some 7 vehicle spaces for three 3 bedroom dwellings, it is a type which meets the parameters of the Good Design Guide and there appears to be ample room for on-street parking here." [14]
"I tend to somewhat agree with Mr Tweedie about several problems with the front view of dwelling 1... This can be done by setting the front of dwelling 1 back a further 1 metre from the frontage at the upper storey and continuing the roof of the lower storey across the front of the building. I also am of the opinion that the triangular porch should be replaced by a more conventional rectangular or square porch..." [17]
"Accordingly I intend to uphold the responsible authority's decision in part and issue a permit for the proposal." [20]
The decision is relevant where an application for medium-density housing:
In similar fact patterns, tribunals may prefer conditioned approval with precise design changes over outright refusal, particularly where technical requirements (parking, overshadowing) are satisfied.
This judgment itself does not cite or apply higher-court precedent beyond planning scheme provisions and the Good Design Guide. The Reasons record that the covenant cancellation issue was separated for another hearing and was not determinative in this review (paras 11-13). Because the decision is a Tribunal (VCAT) member's merits decision, its direct precedential weight is to guide similar VCAT planning list decisions and council assessments rather than to change higher-court law. The Reasons do not record any subsequent appellate treatment; the text does not cite later cases that rely on it. As a practical matter planners and councils can treat the decision as an illustration of VCAT’s willingness to require targeted design changes to meet local character outcomes (paras 17-19).
Covenant interplay: The Tribunal deliberately avoided resolving the restrictive covenant issue in this review, leaving unresolved how a successful or unsuccessful covenant cancellation outcome would affect the implemented permit. The decision notes a separate proceeding (paras 2-3, 11-13). The final practical effect depends on the covenant hearing and any registration actions at the Titles Office.
Degree of modification necessary: The Tribunal required a 1 metre upper-storey setback and the continuation of the lower roof across the front as sufficient remedies in this case (para 17). How that exact remedy translates to other sites with different street patterns, setbacks or proportions will depend on site-specific application of Guideline 5.
Character analysis scope: The Judge acknowledged that Precinct G4 is large and contains a mix of building ages and forms (para 15). Questions may remain about the geographical scope for defining 'neighbourhood character', whether new estates, corner two-storey houses, or nearby multi-dwelling examples should be weighed heavily for different sites.
Energy performance and shading: The Tribunal linked shading (eaves) to both character and energy efficiency concerns (para 17). The intersection between visual character controls and passive-solar/energy-conserving design interventions invites further articulation in guidelines or decisions.
Balancing refusal vs modification: The decision demonstrates a willingness to modify rather than refuse where conformity can be achieved. However, it remains a fact-sensitive discretionary exercise; similar proposals might be refused where modifications are inadequate to remedy more serious massing or dominance concerns.
Final note: This analysis summarises and organises the Tribunal’s reasoning and orders in Finanzio S & C v Darebin CC and anor [2001] VCAT 1050, based solely on the judgment text provided. It is general legal information, not legal advice. I can make mistakes. Before you act on, rely on, or use any part of this analysis or the draft content herein, get a qualified Australian lawyer to check it.
Application under Section 82 of the Planning and Environment Act 1987 (the Act) to review a decision to grant a permit.
The Application for Review by the Objector is allowed in part.
The order of the Tribunal is that the decision of the Responsible Authority is varied.
A permit is granted for three dwellings at 14 Sturdee Street, Reservoir generally in accordance with the endorsed plans and subject to the conditions contained in the Notice of Decision to Grant a Permit No. D0264/00 issued by the Responsible Authority on 20 December 2000 modified by:
1(b) the upper level of dwelling 1 to be set back 1 metre from the front lower wall and the roof continued across the frontage of the dwelling.
1(c) appropriate eaves or other measures taken to provide adequate shading of the western windows of the proposal.
1(d) the triangular front porch of dwelling 1 is to be deleted and replaced with a traditional square or rectangular porch to provide adequate cover of the entrance.
The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.
Mr G. Bennett, Town Planner for the Responsible Authority.
Mr G.J. Herbert, Barrister for the Permit Applicant/Respondent. He called Mr G. Guthrie, Town Planner, as a witness.
Mr N. J. Tweedie, Barrister for the Applicants for Review.
1. The proposed development is not respectful of its neighbourhood:
* the character of the neighbourhood is typified by modest post war dwellings set onto large allotments;
* on both sides of the street the setbacks of existing dwellings are relatively uniform and incorporate formal planting arrangements;
* angular forms incorporated within the design are not characteristic of the building forms present;
* the two storey height of the building and its proximity to the frontage will make these discordant design elements intrusive in the streetscape.
2. The height, bulk and mass of the proposed development is inappropriate in the area.
3. The car parking layout within the proposed development is inappropriate in that:
* the garage access dimensions are too small; and
* the reversing movement required of unit three is unsafe and inefficient.
1. This is an application to review a decision of the City of Darebin to grant a permit for three dwellings comprising two double storey and one single storey dwelling at 14 Sturdee Street, Reservoir by S. and C. Finanzio.
2. While there is no bearing on this decision the applicants also have an application before the Tribunal to be heard by a legal member for the cancellation of a variation of Section C of the Restrictive Covenant.
3. The matter was the subject of a directions hearing before my colleague, Mrs Tonia Komesaroff, a Legal Member, on the 18th and 19th April who directed that this hearing take place on the date as listed and that the application for cancellation of the covenant variation, No.2001/25517, be listed before a legal member on 7th and 8th June 2001.
4. Mr Bennett's succinct description of the proposal has been adopted and it reads:
"To develop the land for a multi-dwelling development comprising the construction of three (3) dwellings comprising two (2) two-storey dwellings and a single-storey dwelling at the rear.
Unit 1 is setback 7.5 metres from the front boundary. The dwelling will comprise a family room, meals area, lounge room, kitchen and amenities on the ground floor with three (3) bedrooms and amenities on the fist floor. Open space is located to the side of the dwelling with a minimum dimension of 3 metres and with direct access from a living area. The open space extends approximately 1.5 metres forward of the front wall of the dwelling.
Unit 2 is located centrally on the site and has a similar layout to Unit 1. The open space is located to the rear of the dwelling with dimensions varying between 3 metres and 4 metres and direct access from a main living area.
Each of the above dwellings has a double garage which is located between these dwellings. Bedroom 2 of each dwelling is built over the garages.
Unit 3 is a single storey dwelling located at the rear of the site. It comprises a family room, lounge room, kitchen, three (3) bedrooms and amenities. Open space is provided to the rear of the dwelling with a dimension of 4 metres and with direct access from a living area. A single garage and tandem car space are provided adjacent to the dwelling.
Each dwelling is provided with a separate storeroom which is attached to the dwelling."
5. The description of this in Mr Gattini's evidence has been adopted and reads as:
"The review site is commonly known as 14 Sturdee Street, Reservoir, and is located on the eastern side of Sturdee Street. The site is opposite the intersection with Jackson Street. The site has a frontage to Sturdee Street of approximately 18.59 metres and a depth of approximately 48.77 metres, giving the site an overall area of approximately 906.73m2.
The site presently contains a single storey weatherboard dwelling with several outbuildings. The dwelling is in fair to poor condition.
The site has been the subject of a feature and level survey conducted by Prior and Kelly Pty Ltd. It confirms my visual observation that the site is flat. There is a very slight cross fall from north to south. There is no significant difference in levels between the subject site and adjoining properties. There are no impediments to the development arising from slope.
The site contains limited vegetation, none of which is considered to be significant or worthy of retention.
To the best of my knowledge no easements affect the subject site. This fact is confirmed by the title and the feature and level survey.
I am advised that restrictive covenant limiting the construction of two or more dwellings on the site is included on the title. However, a Planning Permit, D239/99 has been granted to vary Section C of the restrictive covenant contained in instrument No.1367479 to allow more than one dwelling on the site. The Responsible Authority issued this permit on July 15 1999. My statement is prepared on the basis that the single dwelling restriction has been removed or is in the process of being removed at the titles office.
To the south the site abuts No. 12, which comprises three single storey villa units or dwellings which are attached by garages. To the north there is a weatherboard dwelling of similar age. To the west there are a mixture of timber and brick veneer homes. The quality of the housing stock varies within the street, some dwellings are poorly maintained.
During my inspection I observed that there were a number of multi dwelling proposals along Church Street some 100 metres to the north. These multi dwellings were facing Church and High Street.
In the immediate area of the subject site, there is a two-storey dwelling at Jackson Street and another on the corner of Sims and Sturdee Streets.
The site is located in close proximity to public transport. Train stations are located approximately between 700 metres and 930 metres away from the site. Bus stops are located along High Street. A range of retail, medical, professional and other services are located in the Edwards Street retail area. Larger parks and reserves offering a variety of recreational pursuits including barbecue facilities are accessible at distances ranging from 1.3 to 2.0 kilometres. The area contains a good range of services and facilities that would be typical or expected of an established area.
The site also has a good connection to major road networks, these being the Western/Northern Ring Road, Hume Hwy and High Street.
A summary of the sites location in a broader strategic context is provided as follows:
* 100 metres from bus route 555, which provides a connection to train stations and the local shopping centre;
* 700 metres north of the Ruthven Train Station;
* 1.5 kilometres from Edgars Creek Wetlands/Edwards Lake Park, which includes public barbecue facilities and children's play equipment;
* 1.4 kilometres north of local strip shopping centre and bus interchange in Edwards Street; and
* 4.3 kilometres north of the High Street retail precinct."
6. Ms Bennett advised that initially the applicant proposed to place three double storey dwellings on the site and these were shown in the plans accompanying the application. The responsible authority indicated that it was unhappy with this and the applicant was also advised by Mr Gattini to make the third rear unit a single storey one. Amended plans were submitted and these were the subject of the advertising procedure which commenced in late October 2000. Four objections were received by the responsible authority as a result of the notification, these related to it being out of character with the area; its height, bulk and mass inappropriate; the car parking allowed inadequate; the removal of the covenant; loss of privacy and increase in noise and traffic congestion. Following the objections a consultation meeting was held but there was no resolution to any of the matters. On 20th December 2000 the responsible authority determined to issue a notice of decision to grant a permit with conditions.
7. The site is zoned Residential A with no overlay controls.
8. The issue of the restricted covenant on the permit and cancelling of it were matters that occurred prior to the Planning and Environment Restricted Covenants Act coming into force on 13th December 2000. This matter as I said is the subject of a separate application for review. Clause 32.01-4 requires a planning permit to be obtained for the development of two or more dwellings on a lot and requires that the application be assessed against the Good Design Guide for Medium Density Housing. The matter is also subject to the general State and Local Planning Policy Framework Provisions of the planning scheme as well as the MSS and local policies.
9. There is general support in the MSS for medium density housing but it also requires that the Darebin Urban Character Study be used in the assessment of applications for medium density housing. The site is within Precinct G4 characterised by dwellings from the 1960s and 1970s but in this instance there are some dwellings from the 1940s and 50s immediately adjacent to the subject site.
10. I received brief written submissions from the advocates and a lengthy Statement of Evidence from Mr Gattini. All the parties spoke to written submissions and Mr Gattini was questioned at length by both Mr Herbert and Mr Tweedie. Photographs and other information were also tabled and these together with the submissions and Statement of Evidence were retained on the Tribunal file.
11. While this application for review has nothing to do with the covenant issue Mr Tweedie still referred to that in some detail as he believed that the covenant was of relevant consideration for me in my consideration of this application. The Council has issued a permit for the cancellation of the covenant which requires there to be only one house on each lot in this area that is covenanted and while Mr Tweedie said that the covenant had not been acted on Mr Herbert submitted it had to the extent that the application for these units is proceeding. It is a matter I intend taking no further.
12. Mr Tweedie also submitted that there was something in the order of 740 allotments in the area covenanted. That is a huge area for single dwellings on large lots in any suburb. However, he also indicated that the covenant had been breached many times across that large area but that this smaller neighbourhood pocket in which the subject site exists has not in fact yet been affected to any great degree. This is in spite of the fact that there is a three unit development immediately to the south of the subject site and diagonally to the south east a three unit development exists fronting Flemington Road. There is also a four unit development on the corner of Church Street and High Street.
13. I have indicated that I am ignoring the matter of the covenant. This particular matter will still depend on the subsequent hearing in relation to the cancellation of that permit and that if successful then what I am doing here is academic, however that may not be so.
14. There really are only two major issues needing to be addressed in Mr Tweedie's submission and they are neighbourhood character and parking. I am not at all concerned with the parking issue as the proposal results in some 7 vehicle spaces for three 3 bedroom dwellings, it is a type which meets the parameters of the Good Design Guide and there appears to be ample room for on-street parking here. The existing vehicle crossing to the north of this site is of course to be replaced by kerb and channel and that will allow two vehicles to be parked in front of the site.
15. In relation to neighbourhood character it was submitted that the majority of the houses in this area are single storey. Mr Gattini admitted this under questioning but cited several examples of double storey among the established building stock and of course quite a number in a new estate situated in a former school site nearby. Mr Tweedie in his questioning of Mr Gattini dragged out of him the fact that the new estate should perhaps not be considered as part of the neighbourhood character when assessing this application. However, he maintained that it nevertheless is in the precinct. This Precinct G4 is huge and it has some interesting features, the most interesting of which is that it is a relatively ordinary area apart from perhaps the new development on the former school site. Dwellings are modest, the ones in the immediate area could be said to be partly austerity housing built immediately after the second World War. Not only were houses built immediately after the war small and plain, they were also subject to scarcity of building materials and other restrictions. Consequently this provided suburbs of smaller houses on large blocks which have led to large well planted front setbacks and generally wide or empty rear yards. Few of these could be said to be appropriate for today's lifestyles in this modern era. The guidelines for Precinct G4 is Guideline 5 in relation to height and form. The objective of this is "to ensure buildings and extensions do not dominate the streetscape and/or the building technique for this is inconsistent streetscapes the height of the front of the dwelling is to match nearby single storey wall heights." Mr Tweedie's arguments and his questioning of Mr Gattini were based on the premise that the front wall of the front dwelling 1 did not match single storey wall heights, in fact it is a straight two storey wall with large windows on both the first and second storey. Mr Gattini indicated he felt that it did meet the objectives of G4 and certainly picked up the elements of one building, No 7 Sturdee Street, on the corner of Sturdee and Sims Streets.
16. Mr Bennett indicated that the only area that the Council had some concerns about was the walls of the two storey element of the front but that it felt the building was well enough articulated so as not to dominate the streetscape.
17. I tend to somewhat agree with Mr Tweedie about several problems with the front view of dwelling 1. It is not energy efficient as there is no shading over the windows to prevent the hot summer sun from directly entering the front rooms. In relation to single storey appearance I believe that the technique in Element 5 of the guidelines should be followed in this particular situation. This can be done by setting the front of dwelling 1 back a further 1 metre from the frontage at the upper storey and continuing the roof of the lower storey across the front of the building. I also am of the opinion that the triangular porch should be replaced by a more conventional rectangular or square porch to provide plenty of cover over the entry on the western side of that building.
18. I do not believe it is inappropriate for medium density development to occur on this site. Mr Gattini stated that their neighbours on either side had not objected. I have no evidence to the contrary and nothing was said by the other parties to refute this. The development is centrally placed in the allotment and measures have been taken to ensure that there is no overlooking and no overshadowing of adjacent sites. From that point of view it is satisfactory.
19. Open space as provided is sufficient and vehicle spaces also meet the Guide's parameters. The driveway is well curved to allow planting of sufficient canopy trees as well and this can also occur within the front setbacks.
20. The key characteristics of the G4 Precinct are in relation to height and form and that also states that two storey dwellings are common. Now as I have said this is a very large precinct and in the immediate area of the subject site two storey dwellings are not all that common. However, two storey dwellings are also a common form of housing throughout the western world. There is no restriction by covenant or planning scheme provision against two storey dwellings and from my point of view if they meet the guidelines and, I am sure that the measures I have suggested will ensure they do, then they should not be prohibited. Accordingly I intend to uphold the responsible authority's decision in part and issue a permit for the proposal.
Finanzio S & C
Darebin CC and anor [2001] VCAT 1050
The Tribunal allowed the application for review in part. The decision of the Responsible Authority was varied. A permit was granted for three dwellings generally in accordance with the endorsed plans, subject to modified conditions: (1)(b) upper level of dwelling 1 set back 1 metre from the front lower wall and roof continued across the frontage; (1)(c) provide appropriate eaves or shading for western windows; (1)(d) delete triangular porch of dwelling 1 and replace with a traditional square or rectangular porch. The Responsible Authority was directed to issue a permit in accordance with the order under s85(1)(b) of the Planning and Environment Act 1987 (Order; paras 17-18; Order text).