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[2001] VCAT 608
respondent. The Tribunal affirmed the decision of the Responsible Authority to refuse to grant a permit to erect a balustrade and use the existing canopy for outdoor seating over the street alignment; no...
Gardner Group sought permission to put a balustrade and use an existing canopy as a balcony for outdoor seating that extended over the footpath at a café in Acland Street. The balustrade had already been put up without a permit. VCAT held that the balcony and above-footpath seating would intrude on the public space, harm the distinctive 'village' streetscape the Planning Scheme seeks to protect, could not be treated as a minor work, and would create an undesirable precedent. The Tribunal therefore affirmed the council's refusal and refused the permit.
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Gardner Group Pty Ltd applied to the City of Port Phillip for a planning permit on 20 December 1999 to "Erect balustrade and use existing canopy for outdoor seating over street alignment" at 110 Acland Street, St Kilda (para 3). The site was a two-storey former fast-food building then operating as "Banjo's Bakery" (para 2). The proposal would have extended the first-floor seating area approximately 2.2 metres along Acland Street and about 1.1 metres along Belford Street, creating a balcony above both footpaths with an aluminium and toughened glass balustrade (para 4). The balustrade was already in situ, having been erected without a permit in 1999, and the area was being used for seating; infringement notices and a temporary barrier had been issued/erected (para 6).
1 cited instrument linked from this judgment.
The Responsible Authority refused the permit, giving reasons including inconsistency with local land uses, adverse effect on residential amenity and streetscape character, failure to provide adequate car parking (later abandoned by the applicant), and conflict with neighbourhood policies and the Municipal Strategic Statement (para 7). Gardner Group sought review in VCAT under s.77 of the Planning and Environment Act 1987 (para 1). The Tribunal inspected Acland Street, heard urban design evidence (Mr James Holdsworth) and submissions for both sides, and on 23 March 2001 affirmed the Responsible Authority's refusal (Decision; paras 24-27). The Tribunal also ordered the outer edge balustrade removed and suitable fixed balustrading or screens placed on the correct building line (para 28).
The Tribunal's decision rested on three linked considerations grounded in the Planning Scheme and urban design evidence.
Controls and policy: The site sat in a Business 1 Zone and was subject to Design and Development Overlay DDOA11 (Schedule 6). That Schedule restricts buildings and works within specified setback distances unless the Responsible Authority is satisfied the proposal is justified in context and meets design objectives and decision guidelines (paras 9-12). The Tribunal read these controls together with Clause 21.04 (aim to retain Acland Street's 'village' atmosphere), Clause 21.05-4 (urban design objective to enhance neighbourhood character) and Clause 22.02-3 (Retail Centres Policy, aiming to retain local character, scale and streetscape) (paras 15-18).
Not 'minor' in planning terms: Although Schedule 6 lists verandahs, balconies and similar elements among works that may be minor, the Tribunal rejected the applicant's submission that this proposal was minor. It emphasised that a balcony is by definition a platform where people sit or stand, and the proposed balustrade was associated with an expansion of usable floor space and a fundamental change in visual impact (paras 11-15, 23). The Tribunal thus concluded it could not be treated as a minor, incidental projection notwithstanding the list in the Schedule.
Streetscape and precedent risk: The Tribunal accepted the Responsible Authority's urban design evidence (Mr Holdsworth) that extending the first floor over the footpath is an intrusion into public space and would adversely affect the traditional character of Acland Street (paras 19-21). It was particularly concerned about precedent and incremental change, accepting the submission that granting the permit would encourage similar inexpensive additions to restaurant floor space and, cumulatively, would radically alter the street's character (paras 22, 25). The Tribunal expressly applied the caution against piecemeal planning found in Pioneer Concrete (cited at para 22) to support refusal on that ground.
Taken together, those considerations led the Tribunal to find the proposal inconsistent with scheme controls and objectives and to affirm refusal (paras 25-27).
Before this decision, the Planning Scheme already protected Acland Street's local character through the Municipal Strategic Statement, Urban Design provisions and the Retail Centres Policy (paras 15-18). Design and Development Overlays commonly allow certain 'minor' works; however, the Tribunal explained that the mere listing of elements like 'balconies' does not automatically render every balcony minor in planning effect, the character and function of the specific proposal must be assessed (paras 11-14).
After this decision, the practical effect is that proposals creating new above-footpath dining areas that materially project into or over public footpaths in heritage-sensitive or fine-grain retail streets will be scrutinised against character, streetscape and cumulative change considerations. The case reinforces that the 'minor works' category in a DDO is not a blanket carve-out: context and functional impact matter. The decision also underlines the Tribunal's willingness to treat precedent and piecemeal expansion as determinative where cumulative harm to streetscape is likely (paras 22, 25).
This is a Tribunal decision rather than a higher court precedent; it is fact-specific. Practitioners should treat it as persuasive authority on the themes of character protection, the functional assessment of 'balcony' works, and the weight to give precedent and incremental change in DDO contexts.
DDO 'minor works' provision (para 11)
Definition and effect of a balcony (paras 13-14)
Urban design evidence about Acland Street (para 20)
Precedent concern (para 25)
This decision is most directly relevant where:
By contrast, the case is less directly applicable where a projection is truly minor, purely decorative, does not create additional usable floor area, or occurs in streets that the scheme does not seek to preserve in the same way.
The judgment itself does not record later judicial treatment or appellate consideration of this specific VCAT decision. Because this is a Tribunal decision, its precedential weight is persuasive and fact-specific. To determine subsequent treatment, one must search case law databases and VCAT decisions for citations to Gardner Group Pty Ltd v City of Port Phillip [2001] VCAT 608. The Tribunal's approach to 'minor works', functional assessment of balconies and the weight given to precedent/piecemeal change, however, aligns with familiar planning principles applied in later planning decisions: evaluate the substance and cumulative impact of proposed works in context, and do not treat an item as 'minor' purely because the DDO mentions it.
Practitioners should conduct targeted research (LAWLEX, AustLII, Council decisions) to see whether later tribunals or courts have cited this decision; absent that research, it should be treated as a persuasive VCAT decision illustrating these themes rather than as establishing binding higher-court precedent.
How to calibrate 'minor' in other factual contexts: The Tribunal focused on the functional change and precedent risk here. In other DDO contexts, what degree of projection or number of patrons would transform an otherwise minor feature into a non-minor one? The judgment gives principles rather than quantitative thresholds (paras 11-15, 23).
Interaction with statutory approvals over government roads: The Tribunal noted DNRE's lack of objection to projection over a Government Road does not relieve planning scrutiny under the scheme (para 23). Questions remain about how consent from road authorities intersects with scheme-based amenity and character assessments in practice.
Balancing commercial vitality and character control: The applicant argued the additional seating would add social vibrancy and was in keeping with café character (para 23). The Tribunal favoured protection of fine-grain retail character over incremental commercial expansion. Future cases will test the margins between supporting economic activity and preserving streetscape character, and how planning schemes should articulate that balance.
Enforcement and retrospective works: The balustrade here was already erected without a permit (para 6). The Tribunal affirmed refusal but also directed remedial work (para 28). The case leaves open procedural questions about interim enforcement measures, remedies and whether approval of other internal first-floor uses would affect the outcome.
Comparative evidence of precedent: The applicant pointed to a few other balconies in the municipality (para 23). The Tribunal found they were not comparable. Determining when isolated examples amount to established character and when they are exceptional remains a fact-intensive inquiry.
Conclusion
Gardner Group v City of Port Phillip is a concise VCAT decision that applies the Planning Scheme's neighbourhood character and DDO controls to refuse an above-footpath balcony/seating proposal. The Tribunal emphasised functional effect over labels, the importance of context and streetscape, and the weight of precedent and piecemeal change as planning considerations. For advisers, the decision is a practical reminder to test any projection for its real use and cumulative impact, to marshal strong urban design evidence when seeking departures from DDO setbacks, and to address precedent risk proactively in submissions.
BEFORE: Judge Michael Strong, Acting Vice President
The decision of the Responsible Authority to refuse to grant a permit to erect a balustrade and use existing canopy for outdoor seating over street alignment is affirmed. No permit to issue.
For the Applicant: Mr A Lorenzini of AA and AS Lorenzini Pty Ltd
Authority: Mr N Tweedie of Counsel. Mr Tweedie called Mr J Holdsworth, Manager of Urban Design with the Responsible Authority as a witness
1. This is an application pursuant to s.77 of the Planning and Environment Act 1987 to review a decision of City of Port Phillip ("the Responsible Authority") to refuse the grant of a permit.
2. The subject land is situated on the north east corner of the intersection of Acland and Belford Streets, St Kilda. It contains a two-storey building previously used as a Kentucky Fried Chicken outlet but currently used as a café styled "Banjo's Bakery".
3. On 20 December 1999 the applicant applied to the Responsible Authority for the planning permit to -
"Erect balustrade and use existing canopy for outdoor seating over street alignment as per attached plans."
4. The effect of the proposal would be to extend the first floor seating area of the café by approximately 2.2 metres along its Acland Street boundary and approximately 1.1 metres along its Belford Street boundary. In other words, there would be a balcony above both the Acland Street and Belford Street footpaths with an aluminium and toughened glass balustrade along the perimeter.
5. The proposal is novel inasmuch as there is no other restaurant or café in Acland Street with an `above the footpath' eating area.
6. In fact the balustrade was already in place at the time the application was made. It had been erected without permit in 1999. The proprietor of the cafe had begun to use the additional space thereby created as an area for seating. This resulted in the issue of planning infringement notices which lead (eventually) to the erection of a temporary barrier along the property line. The balustrade has remained in place, notwithstanding a requirement by the Responsible Authority that it be removed.
7. The application made on 20 December 1999 was refused by the Responsible Authority for the following reasons:
"1. The use is inconsistent and incompatible with the nature of land uses in the areas.
2. The proposal is inappropriate for the subject building and would adversely affect the residential amenity of the area.
3. The proposal fails to provide adequate car parking.
4. The proposal is contrary to the Council's Neighbourhood Policy objectives.
5. The proposal is contrary to Council's Municipal Strategic Statement."
8. The car parking issue is no longer relevant because the applicant has abandoned its proposal to increase total seating, although this heightens the Responsible Authority's concerns that the applicant is embarked on a `piecemeal' planning exercise (as to which more will be said later).
9. The subject land is controlled by the Port Phillip Planning Scheme ("the Planning Scheme") and is located in a `Business 1 zone'. Food premises is an `as of right' use.
10. The subject land is affected by a Design and Development Overlay - DDOA11, Clause 2.0 of Schedule 6 of which provides:
"Buildings and works should not be constructed within the distance from boundary shown in the table to the Schedule unless the Responsible Authority is satisfied that the proposal is justified in the context of a surrounding urban form and achieves compliance with the design objectives and decision guidelines."
"Minor buildings and works, such as verandahs, architectural features, balconies, shelters, sunshades, art works, street furniture, and also basements which do not project above ground level, may be constructed within the setback areas shown in the table to the Schedule."
12. The Table to Schedule 6 stipulates the required setback distances. The relevant area is DD06 - a11. The setback distance specified is "less than 3 metres from an Albert, Belford or Urwell Street front boundary". Within that distance, no buildings or works are to be constructed "except with a permit".
13. The Responsible Authority submits that the works proposed are not minor "because they are associated with, and necessary for, the expanse of the floor space of the use". The Tribunal does not agree. The Concise Oxford Dictionary describes balcony as:
"1. A usually balustraded platform on the outside of a building, with access from an upper-floor window or door.
2a. The tier of seats in a theatre above the dress circle.
14. In other words, a balcony is by definition a place where people stand, or sit, or both. It is different from a verandah, which is also listed as "minor".
15. Clause 21.04 of this Planning Scheme provides that the Council envisages that:
"Acland Street retains its distinctive `village' atmosphere created by the predominantly low rise, fine grain built form of the centre and the balance of local convenience, retail and tourist facilities is maintained."
16. Clause 21.05-4 of the Planning Scheme is headed "Urban Design" and includes as an objective:
"To ensure that the design of new development ... will enhance neighbourhood character."
17. Clause 22.02-3 of the Planning Scheme is headed "Retail Centres Policy" and includes as an objective:
"To maintain and enhance retail centres that ... offer safety, security, comfort, convenience and a high level of physical and visual amenity to all users" and to "retain and emphasise their local character and heritage".
* to encourage new development that is consistent with the local character of retail centres;
* to maintain the existing convenience retailing in Acland Street and Fitzroy Street to meet the needs of local residents;
* that new developments in Fitzroy Street and Acland Street respect the consistent two-storey scale, architectural style and streetscape patterns created by the fine grain subdivision pattern of the Victorian and inter-war shops in Acland Street.
19. Evidence was given (in the form of a report and under cross-examination) by Mr James Holdsworth, Manager of Urban Design and Architecture for the City of Port Phillip. Mr Holdsworth makes the following observations, with which the Tribunal agrees, as to the general character of the area:
"Acland Street (between Carlisle Street and Barkly Street) is a well-renowned retail and restaurant area, widely recognised as popular to Melburnians and visitors for many years for the eastern European culture, cake and coffee shops, scale and character. The street is an eclectic mix of architectural styles, qualities and eras, but is significant for its sense of enclosure and scale. There are few shopping streets in Melbourne which are short, relatively free of through traffic, emphasise pedestrian amenity and exude a sense of intimacy in the way that this section of Acland Street does."
20. A little further on in his report Mr Holdsworth says:
"The notion of using the first floor for retail activity is relatively new and, in itself, not unreasonable. The practice of extending this upper level out over the footpath is, however, an intrusion into the physical public space. In the case of Acland Street in general and the subject site in particular, the upper level outdoor dining area over the footpath adversely affects the traditional character of this commercial precinct."
21. Mr Holdsworth is of the view that the proposed development is undesirable for reasons which include the adverse impact on the streetscape and character of the area and the precedent which would be set.
22. Mr Tweedie, on behalf of the Responsible Authority, made the following submissions amongst others:
* The application represents a piecemeal approach to planning, contrary to the principles expressed in Pioneer Concrete (QLD) Pty Ltd v Brisbane City Council (1980)m [1980] HCA 1; 145 CLR 485. In this regard the Responsible Authority asserts that "the intention of the owner and occupier has always been to use the concrete canopy area for seating."
* The proposal represents an unsatisfactory result in terms of urban design, character and streetscape.
* The erection of a balustrade and the addition of seating to what is now essentially a verandah structure constitute a fundamental change in the visual impact of the site.
* Having restaurant patrons seated above the footpath would compromise the existing character of Acland Street, which derives from the interaction of the existing ground floor uses with pedestrian and street-level activity.
* The intrusion of upper-level dining areas beyond boundary lines and into the public areas above pedestrian footpaths is a foreign and undesirable concept in Acland Street. It compromises the "village" atmosphere of the street and stands in stark contrast to the balance of the streetscape.
* The proposal, if allowed, would create an undesirable precedent for future applications seeking to expand entertainment uses into upper levels and onto the road space.
23. Submissions on behalf of the applicant were made by Mr Alan Lorenzini of AA & AS Lorenzini Pty Ltd. Some of the points he made were -
* There are other examples in the City of Port Phillip of balconies over streets and footpaths.
Further discussion disclosed the existence of only two restaurants or cafes with `above the footpath' balconies, neither of them comparable to the proposed development or in comparable areas.
* There are tables and chairs already in place along the Acland Street footpath, with Council permission. Thus there is already a precedent for the `privatising' of public areas for café use.
This is so, but in the view of the Tribunal there is a substantial difference between `on the footpath' and `above the footpath' use.
* The Department of Natural Resources and Environment was asked to comment on the proposal "and it raised no objection to the matter".
The approval of DNRE is required because the proposal involves projection over a Government Road. It is not the responsibility or function of DNRE to consider the suitability of the proposal under the Planning Scheme and, to that extent, the stance adopted by DNRE is irrelevant.
* The proposal will not impact adversely on the streetscape or on the character of the area.
This is the nub of the dispute and will be dealt with in our conclusions.
* The proposal would add to the social vibrancy of the area, cater to the shopping needs of residents and visitors and add to physical and visual amenity.
* The extension of the café is "very much in keeping" with the café character of the street.
The Tribunal apprehends that the Responsible Authority is concerned to maintain the spread of retail activities which are characteristic of the street. In other words, we do not apprehend that the Responsible Authority envisages Acland Street as a `café strip', like Lygon Street, Carlton. We emphasise, we do not treat this consideration as being adverse to the applicant; but we do not regard the expansion of floor space in Banjo's Bakery as enhancing the application, as Mr Lorenzini has suggested.
* The Responsible Authority has already approved the creation of an outdoor setting area within the property lines on the first floor of the subject premises and the extension of this eating area onto a balcony is "minor" in the scale of things.
This was a controversial submission. Mr Tweedie, on behalf of the Responsible Authority, submitted that the creation of the outdoor dining area at first floor level has never been approved. Mr Lorenzini argued the contrary. This is not an issue on which the Tribunal must necessarily adjudicate: indeed, we assured Mr Lorenzini that if the outcome of this review depended on the view we formed of the legality of the present arrangements (within the property lines), the applicant would be given an opportunity to make further submission. Thus for the purpose of this review we will assume (without deciding) that the current usage of the premises is lawful. For reasons we will state in our conclusion, we disagree that extension of the café onto the balcony is `minor' in the context of current usage.
24. The Tribunal members visited Acland Street to assess the impact of the proposal on what has become a unique part of St Kilda.
25. The Tribunal substantially accepts the opinions expressed by Mr Holdsworth and the submissions made on behalf of the Responsible Authority. We are persuaded that the proposed development cannot be reconciled with controls spelt out in the Planning Scheme. The proposal is out of character with the area and is seen by the Tribunal as an unnecessary intrusion into this unique precinct. We are particularly concerned about the precedent which would be set. If `above the footpath' open air dining was thought to be acceptable in this instance, there are likely to be further applications: it is a relatively inexpensive way to add to restaurant floor space. Future applicants would rely heavily on the grant of this permit - if it were to be granted. If there were to be a proliferation of such `above the footpath' dining areas in Acland Street, it would quite radically and adversely alter the character of the street.
26. We emphasise, we have assessed this application on its merits and, on that basis, we have decided to affirm the decision of the Responsible Authority. But we are reinforced in that conclusion by our concerns about the undesirability of incremental change of this kind.
27. For these reasons the Tribunal affirms the decision of the Responsible Authority to refuse the permit application.
28. At the inspection it was noted that temporary moveable sign screens designed to keep upper patrons off the `balcony' were in fact allowing a flow onto the area. The outer edge balustrade should be removed and suitable fixed balustrading or screens placed on the correct building line.
The Tribunal affirmed the decision of the Responsible Authority to refuse to grant a permit to erect a balustrade and use the existing canopy for outdoor seating over the street alignment; no permit to issue (Decision; paras 25-27).