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[2001] VCAT 2071
respondent. The Tribunal varied the Responsible Authority's decision and granted a permit for demolition and a new dwelling at 268A Domain Road, generally in accordance with endorsed plans and conditions in...
Mrs Francis sought review of a council decision to permit demolition and construction at 268A Domain Road. The Tribunal found the significant elm could be reasonably protected by conditions and accepted arboricultural evidence. The Tribunal also found the large blank western wall would not unreasonably harm neighbouring amenity given separation and screening, but required modest indentations to the wall to further reduce impact. The permit was granted with that modification.
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1,578 words · generated 18/07/2026
This case is a section 82 review in the Victorian Civil and Administrative Tribunal of the Responsible Authority's decision to grant a planning permit for demolition of an existing dwelling and construction of a new three-level dwelling at 268A Domain Road, South Yarra. Mrs S. Francis, the applicant for review, owned adjoining properties at 102 and 104 Caroline Street and objected principally on two grounds: (1) that the development would unduly affect a significant golden elm located in the rear garden of 102 Caroline Street, and (2) that the proposed western elevation, a largely blank masonry wall about 10 metres long and averaging 7 metres high, set back roughly 2 metres from the boundary, would unreasonably impact her land's amenity (Reasons [4], [5], [8]).
1 cited instrument linked from this judgment.
The Responsible Authority had granted a permit on 25 May 2001. The Tribunal heard submissions and evidence on 14 September 2001, including an arborist called by the permit applicant (Matt Martino Architect). Member A. P. Liston found that the issues boiled down to the two matters above, accepted the arborist's evidence, and concluded that (a) the tree could be reasonably protected by conditions, and (b) the blank western wall would not have an unreasonable effect on amenity given the separation, screening by the elm and existing outbuildings, and neighbourhood character, albeit the Tribunal required an additional condition to articulate the western facade by 100mm indentations (Reasons [5]–[12]). The Tribunal varied the Responsible Authority's decision accordingly and directed the Responsible Authority to issue the permit under s85(1)(b) of the Planning and Environment Act 1987.
The Tribunal set out a focused factual and evaluative approach. Two features explain the decision:
Site-specific factual assessment of tree impacts: The Tribunal emphasised the tree's qualities (a "magnificent specimen") and its setting within a comparatively large garden. It noted the closest western wall would be set back about 5 metres from the tree trunk (Reasons [4], [6]). Crucially, the Tribunal accepted the evidence of Mr Glen Waters, the arborist called by the permit applicant, describing him as a "very impressive witness" whose opinion on likely impact was accepted (Reason [7]). That acceptance, combined with the Tribunal's own experience about elms (observing they are often hardy in urban settings), led to the conclusion that the development could proceed without unduly affecting the tree's long-term health, subject to reasonable conditions (Reasons [6], [7]).
Contextual assessment of visual amenity and neighbourhood character: On the western wall, the Tribunal did not treat the Good Design Guide setback technique as dispositive. Instead it considered separation distances, screening by the elm and existing outbuildings on the objector's land, and the Responsible Authority's urban conservation consultant's view that unadorned side walls are "relatively common" and of low visibility in the precinct (Reasons [8], [9], [10]). Combining those factors, the Tribunal found no unreasonable loss of amenity and that the wall was consistent with the neighbourhood character. Nevertheless, as a conservative mitigation, the Tribunal accepted a proposed articulation in the form of 100mm indentations to moderate any visual impact (Reasons [11], [12]).
In short, the Tribunal gave primary weight to site-specific facts, expert evidence on arboriculture, and the local conservation advice on streetscape character, rather than applying broad design guide principles rigidly.
Francis v Stonnington CC is not a high court or appellate judgment, so it does not establish new legal doctrine for higher courts. However, in the administrative planning context its reasoning reinforces three practical points already embedded in planning decision-making:
After this case, practitioners can expect VCAT members to continue evaluating tree and visual amenity impacts on a fact-specific basis, considering expert evidence, existing site features and local conservation advice, and to use conditions to mitigate rather than simply refuse where reasonable protection is demonstrable.
Reason [6]: "The existing tree is a magnificent specimen...it should be entirely possible to build a dwelling in the location proposed without unduly affecting the tree, although one would expect that there may be some minor effects in the shorter term."
Plain English: The Tribunal recognised the tree as important but concluded that building the proposed house in its intended spot would not cause serious long-term harm to the tree; minor short-term effects might occur but are not decisive against the proposal.
Reason [7]: "I find Mr Waters to be a very impressive witness, and accept his opinion...implementation of the conditions proposed by the responsible authority...will ensure that the future health of the tree will be reasonably protected."
Plain English: The Tribunal relied on the arborist's evidence and placed confidence that the recommended conditions would protect the tree sufficiently.
Reason [10]: "It cannot be said that the proposed wall will have an unreasonable effect on the amenity of the objector's land...it is consistent with the neighbourhood character of the area."
Plain English: The Tribunal decided the big blank wall would not unreasonably damage the neighbour's enjoyment or contradict the local style and appearance.
Reason [11]: "The permit applicants have suggested...articulating the wall by the use of big indentations...I think this is a sound suggestion, and will further moderate any amenity impacts."
Plain English: Even though the Tribunal did not find the wall unacceptable, it agreed to a sensible change proposed by the applicant to reduce any visual impact further.
This decision is instructive where:
This decision is less relevant where the tree is already in a constrained, small garden with minimal root protection zones, or where the proposed wall is highly visible from the public realm and inconsistent with proximate streetscape character.
This is a VCAT Planning List decision; it will be persuasive primarily in later VCAT matters at first-instance reviews that involve similar local facts: significant trees close to building envelopes, blank side walls, and proposed mitigations by way of conditions. Because the judgment rests on factual assessments and the acceptance of expert evidence, it is less likely to be treated as a binding authority in higher courts. Rather, its value is practical: it models how a tribunal will weigh arboricultural evidence and heritage/urban conservation advice and shows a preference for conditions as mitigation where reasonable protection is achievable. The judgment contains no citation of higher court authorities to anchor a broader legal principle.
Several issues remain open or are left to case-specific determination:
Degree of acceptable short-term effects on trees: The Tribunal accepted the possibility of minor short-term effects while focusing on long-term health (Reason [6]). But it did not articulate how significant short-term decline must be before refusal is required. Future cases will need to define thresholds and monitoring regimes more precisely.
Weight to be given to applicant-led arboricultural evidence: The Tribunal accepted the applicant's arborist as "very impressive" (Reason [7]). Where competing arboricultural opinions exist, tribunals will have to grapple with evaluation criteria and may need more explicit guidance on when expert evidence from one side should prevail.
Interaction with design guides and statutory controls: The Tribunal noted that techniques in the Good Design Guide were not directly applied (Reason [8]). That leaves open how prescriptive design guidance is to be treated where it conflicts with site-specific considerations. The decision illustrates flexibility but does not reconcile competing directives where a guideline might suggest a different outcome.
Remedies and enforcement of conditions for tree protection: The Tribunal accepted that conditions will "reasonably protect" the tree (Reason [7]), but the decision does not specify monitoring, enforcement, or remediation steps in the event of damage. Future cases may require clearer condition drafting and enforcement mechanisms.
Quantifying "neighbourhood character" consistency: The Tribunal accepted the urban conservation consultant's observation that plain walls are common within the precinct (Reason [9]). Where character is contested, tribunals will face the challenge of translating descriptive conservation advice into concrete planning outcomes.
Conclusion: Francis v Stonnington CC is a tightly reasoned VCAT assessment that exemplifies a fact-specific, evidence-led approach to competing tree-protection and amenity concerns in planning permit reviews. It signals tribunals' willingness to rely on expert arboricultural evidence and to use conditions to mitigate impacts while taking a contextual view of neighbourhood character.
Application under Section 82 of the Planning and Environment Act 1987 (the Act) to review a decision to grant a permit. Permit Application No. 0047/01. Residential 1 Zone. Heritage Overlay. Dwelling (Three level dwelling). Site (Frontage 15.24 metres, Area 345.34 square metres). Neighbourhood character. Streetscape. Back yard amenity. Landscape. Loss of established trees.. Building envelope. Overshadowing.
The order of the Tribunal is that the decision of the Responsible Authority is varied. A permit is granted for demolition of the existing dwelling and a new dwelling at 268A Domain Road, South Yarra generally in accordance with the endorsed plans and subject to the conditions contained in the Notice of Decision to Grant a Permit No. 0047/00 issued by the Responsible Authority on 25th May 2001 modified by adding following to condition 1:-
(k) modifications to the articulation of the western facade of the proposed dwelling (100mm deep indentations in the brick wall) generally in accordance with the drawing TP08 dated 11.09.01 by Matt Martino Architect.
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.
Ms Gillian Menegas, Town Planner, appeared on behalf of the Responsible Authority.
Mr Dominic Scally, Solicitor, appeared on behalf of the Respondent/Permit Applicant. Mr Scally called Mr Glen Waters, Arborist, as a witness in support of his submission.
Mr Selwyn Custance, Town Planner, appeared on behalf of the Applicant for Review.
1. This is an application to review the decision of the Responsible Authority to grant a permit for the demolition of the existing dwelling, and the construction of a new dwelling, at 268A Domain Road, South Yarra. The parties and the witness in the appeal made both written and verbal submissions and a number of photographs, plans and other documents were tendered to the Tribunal.
2. The subject land is a small regular lot located on the north side of Domain Road in South Yarra. The lot is a short distance east of Caroline Street and abuts the rear boundary of No. 102 Caroline Street. The subject land falls steeply from the south to the north. The existing two storey dwelling is developed towards the northern boundary of the site, and appears to have been constructed during the 1960s or 1970s.
3. The proposal is to demolish the existing house and to construct a new three level, three bedroom dwelling on the land, with the new house being located closer to the Domain Road frontage of the site, so that the new dwelling takes better advantage of the northern orientation of the land. The proposed house take advantage of the slope in the land so that from Domain Road the house appears to be a tall single storey house with an attic roof level above, and from the adjoining property at 102 Domain Road, as a tall two storey house with an attic level above. The proposed dwelling is set back approximately 2 metres from the western boundary of the site, that is the common boundary with 102 Caroline Street.
4. The applicant for review owns and resides in the dwelling at 104 Caroline Street, and owns the inter-war apartment building on the adjoining site at 102 Caroline Street. The two storey apartment dwelling is located towards the western or Caroline Street end of its site, and behind it there is a large rear garden the rear boundary of which abuts the subject land. The rear garden contains a large two level outbuilding and a magnificent golden elm which appears on the Responsible Authority's significant tree register.
5. Having studied the submissions and evidence I believe that there are only two significant issues in this application for review they are:
i. The impact of the proposed building on the golden elm; and
ii. The visual impact of the west elevation of the proposed dwelling, on the applicant for review's land.
6. In respect of the golden elm I have formed the following conclusions:
* The existing tree is a magnificent specimen of its type and I along with all the parties in this application for review agree that it is important that all possible measures are undertaken to preserve the tree in reasonable health;
* It is my experience that elms are in general hardy trees well suited to urban environments notwithstanding their significant size;
* The existing tree is set within what is for this locality a very large garden;
* The western wall of the proposed dwelling will at its closest point be set back some 5 metres from the trunk of the subject tree.
* And on the basis of my experience it should be entirely possible to build a dwelling in the location proposed without unduly affecting the tree, although one would expect that there may be some minor effects in the shorter term.
7. In addition to these conclusions based on the submissions and my own experience, I find Mr Waters to be a very impressive witness, and accept his opinion about the likely impact of the dwelling on the tree. I am satisfied that the implementation of the conditions proposed by the responsible authority, in the light of the opinions and advice of Mr Waters, will ensure that the future health of the tree will be reasonably protected.
8. In relation to the western elevation of the proposed building the wall which will have a significant impact on the adjoining property, is a blank masonry wall some 10 metres in length and with an average height of approximately 7 metres. The wall has a door and window at the lowest level of the dwelling, but is otherwise blank. The setback of this part of the wall is somewhat less than that which would be required if the techniques of the Good Design Guide were relevant and were to be applied.
9. The Council's heritage adviser made the following comment in respect of this wall from an urban conservation perspective:
"I note that the west side wall of the building is relatively plain, but do not believe that this is an issue with respect to urban conservation. The west wall will be of relatively low visibility within the street, and plain unadorned side walls are relatively, in this precinct, particularly among the older building stock."
10. In my view if one has regard to the separation distance between the proposed dwelling, and the apartments on the adjoining site, and combine this consideration with the screening effect of the golden elm and the existing outbuildings on the objector's property, then it cannot be said that the proposed wall will have an unreasonable effect on the amenity of the objector's land. Moreover, not only am I of the view that the wall will not cause any undue loss of amenity, I am also of the view that it is consistent with the neighbourhood character of the area, a conclusion which is reflective in the observations made by the Responsible Authority's Urban Conservation Consultant set out above.
11. The wall is blank because the objector opposed any windows which might overlook or appear to overlook her land. The permit applicants have suggested a measure for articulating the wall by the use of big indentations, and I think this is a sound suggestion, and will further moderate any amenity impacts.
12. Therefore, it is my conclusion that the decision of the Responsible Authority should be basically upheld, subject to the variation to the articulation of the western wall proposed by the permit applicants, which I accept is a meritorious change.
Francis
Stonnington CC [2001] VCAT 2071
The Tribunal varied the Responsible Authority's decision and granted a permit for demolition and a new dwelling at 268A Domain Road, generally in accordance with endorsed plans and conditions in the Notice of Decision to Grant a Permit No. 0047/00, modified by adding condition 1(k) requiring 100mm deep indentations in the western brick wall as per drawing TP08 dated 11.09.01; the Responsible Authority was directed to issue the permit under s85(1)(b) of the Planning and Environment Act 1987.