Victorian Civil and Administrative Tribunal|2025-07-08

For the reasons outlined above I have concluded that the decision of the Responsible Authority will be set aside. An amended permit is granted subject to conditions.

Construct a building or construct or carry out works.

Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans submitted with the application (identified as Sheets 2 and 3, Revision D, dated June 2024 and prepared by Tamvakis Group) but modified to show:

(a) Full dimensions of the garages/car spaces and accessways are to be provided, showing compliance with Design Standard 2 of Clause 52.06-8 of the Planning Scheme.

(b) The first floor ceiling heights are to be reduced to 2.4m and the overall height reduced accordingly.

(c) The finials to the gable ends of the facades are to be deleted.

(d) The sills to the first floor windows of the northern façade are to be lowered to 1.1m for unit 1 and 1.4m for unit 2.

(e) Provision of a longitudinal section of garage, showing minimum headroom to be 2.2m.

(f) Provision of a 1m pedestrian pathway from the street to the front doors of all dwellings, with the pathway being constructed (not intermittent pavers).

(g) The location of all plant and equipment (including air conditioners and the like). These are to be co-located where possible, screened as to be minimally visible from the public realm and adjacent properties, located as far as practicable from site boundaries, baffled to prevent noise transmission to adjacent properties and integrated into the design of the building.

(h) A comprehensive schedule of construction materials, external finishes and colours (including colour samples).

(i) A Landscape Plan in accordance with Condition No. 5 of this Permit.

(j) A Permeability plan demonstrating the provision 20% permeability in accordance with Standard B9.

(k) The front garden area of Townhouse 2 shown on the ground floor plan and the streetscape elevation to be consistent with the Landscape Plan prepared by John Patrick Landscape Architects Pty Ltd dated 30.04.2025.

When approved, the plans will be endorsed and form part of this Permit.

The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
This Permit will expire if either:
- The development does not start within three (3) years from the date of this Permit; or
- The development is not completed within five (5) years of the date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date.

Prior to the issue of a building permit for any building or any works authorised by this permit, a development levy must be paid to Darebin City Council. The amount of the development levy for each charge unit must be calculated in accordance with Schedule 1 to the Development Contribution Plan Overlay.
Before buildings and works start, a detailed Landscape Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When the Landscape Plan is approved, it will be endorsed and will then form part of this Permit. The Landscape Plan must be generally in accordance with the Landscape Plan, Revision A, dated March 2013 and prepared by Zenith Concepts, but modified to show:

(a) The landscaping in the front garden area of Townhouse 2 as generally in accordance with the Landscape Plan prepared by John Patrick Landscape Architects Pty Ltd dated 30.04.2025.

(b) A planting schedule of proposed vegetation detailing the botanical name, common name, size at maturity and quantities of all plants.

(c) Details of all surfaces including lawns, mulched garden beds and hard paving (such as asphalt, concrete, brick or gravel).

(d) Street trees within the nature strip/s adjacent to the property.

(e) all constructed items including retaining walls, letter boxes, garbage bin receptacles, outdoor furniture, lighting, clotheslines etc.

(f) Edge treatment between grass (lawn) and garden beds.

(g) An outline of the approved building/s including any basement, the location of entry doors, windows, gates and fences. An outline of buildings on adjoining land, including the location of windows and doors which face the subject site must also be shown.

(h) The location of both existing and proposed overhead and underground services. Conflicts of such services with the existing and proposed planting must be avoided.

(i) Clear graphics identifying trees (deciduous and evergreen), shrubs, groundcovers and climbers.

(j) A scale, North Point and appropriate legend.

(k) A diversity of plant species and forms.

(l) The provision of a minimum of:

Four (4) small canopy trees with a minimum mature height of 4 metres.

Two (2) medium canopy trees with a minimum mature height of 8 metres.

All canopy trees must have a minimum height of 2.0 metres in 50 litre containers at the time of installation. Canopy trees must adhere to Darebin City Council's standards for canopy trees at maturity (Height x Width): small canopy trees (4-6m x 4m), medium canopy trees (6-8m x 6m), large canopy trees (8-12m x 10m).

(m) Type and details of all surfaces including lawns, mulched garden beds and permeable and/or hard paving (such as pavers, brick, gravel, asphalt and concrete) demonstrating a minimum site permeability of 20%. Percentage cover of permeable surfaces must be stated on the plan. Where paving is specified, material types and construction methods (including cross sections where appropriate) must be provided.

(n) Type and details of edge treatment between all changes in surface (e.g. grass (lawn), gravel, paving and garden beds).

The landscaping as shown on the endorsed Landscape Plan must be completed to the satisfaction of the Responsible Authority before the development is occupied and/or the use starts or at such later date as is approved by the Responsible Authority in writing.

No later than seven (7) days after the completion of the landscaping, the permit holder must advise Council, in writing, that the landscaping has been completed.

The landscaping as shown on the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the endorsed Landscape Plan to the satisfaction of the Responsible Authority.
Floor levels shown on the endorsed plans must be confirmed. The confirmation of the ground floor level must take place no later than at the time of the inspection of the subfloor of the development required under the Building Act 1993 and the Building Regulations 2006. This confirmation must be in the form of a report from a licensed land surveyor and must be submitted to the Responsible Authority no later than 7 days from the date of the sub-floor inspection. The upper floor levels must be confirmed before a Certificate of Occupancy is issued, by a report from a licensed land surveyor submitted to the Responsible Authority.
All dwellings that share dividing walls must be constructed to limit noise transmission in accordance with Part F(5) of the Building Code of Australia.
Before the dwellings are occupied, an automatic external lighting system capable of illuminating the entry to each unit, access to each garage and car parking space and all pedestrian walkways must be provided on the land to the satisfaction of the Responsible Authority.

The external lighting must be designed, baffled and/or located to ensure that no loss of amenity is caused to adjoining and nearby land, to the satisfaction of the Responsible Authority.

Boundary walls facing adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
The land must be drained to the satisfaction of the Responsible Authority.
With the exception of guttering, rainheads and downpipes, all pipes, fixtures, fittings and vents servicing any building on the land must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.
Provision must be made on the land for letter boxes and receptacles for newspapers to the satisfaction of the Responsible Authority.
Before occupation of the development, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:

(a) constructed;

(b) properly formed to such levels that they can be used in accordance with the plans;

(c) surfaced with an all weather sealcoat;

(d) and drained

Car spaces, access lanes, driveways and waste receptacle storage areas shown on the endorsed plans must not be used for any other purpose.

[1] I have considered all the written and verbal submissions made by the parties (including all of their tendered documents), the expert landscape evidence, and the filed statement of grounds. In accordance with the practice of the Tribunal, I do not refer to all of the contents of these documents in my reasons.

Building Regulations 2006

Administrative Tribunal Act 1998(Vic)

Environment Act 1987

Giannopoulas v Darebin CC [2025] VCAT 604 (8 July 2025)

I do not consider that the proposal adversely affects the significance of the HO170 heritage place. The car space is located in the north-western corner of a contemporary, infill development, and does not require the introduction of a new crossover. The proposal is also consistent with the existing on-site car spaces at nos. 41 and 43 Garnet Street which are located in front of identified heritage buildings: no. 41 is a significant heritage place and no. 43 is a contributory heritage place, under the HO170 citation. Further, the proposed front fence and sliding gate effectively screen the paving of the new at-grade car space. I do not consider that the proposed car space results in a dominant element within the front garden area, nor does it disrupt the streetscape pattern. The existing streetscape pattern of this section of Garnet Street comprises crossovers, driveways and in some instances front car parking.
The citation for the HO170 (Bell-Railway precinct) suggests that new garages and carports should be recessive and not dominate the composition of new building designs as seen from the street. I consider that the proposal is consistent with the citation as it is for an at-grade car space only. The citation describes Garnet Street as featuring asymmetrical Post-Federation period timber villas, with a much lower number of bungalows compared to the rest of the HO170 precinct. I do not consider the proposal to have any adverse impact on the existing heritage buildings in Garnet Street which have been identified in the citation.
The Council also referred to the Hills v Darebin CC [2022] VCAT 1462 Tribunal decision, which relates to a property at no. 18 Sumner Avenue, Northcote (in the HO165). The Council submitted that this Tribunal decision lends support to its opposition to the at-grade car space. The Sumner Avenue proposal included a car space essentially in the centre portion of the front garden area of an identified contributory heritage place, and required the introduction of a new crossover to its primary street frontage. This compares to the proposal before me which is for one car space in the north-western corner of a two-dwelling contemporary medium density housing development, accessed from an existing crossover. Further, the proposed car space is located in a context where the two heritage buildings immediately to the west of the subject site feature existing front car spaces.
The Council submitted that the proposal provides for insufficient landscaping and negatively impacts the pedestrian and public realms contrary to Clauses 11.03-6L-01 (The Junction), 15.01-1L-01 (Urban design) and 15.01-2S (Building design) of the planning scheme.
I consider that the proposal does provide the desired tree planting within the front setback which introduces softness into the streetscape, and it also minimises the visual appearance of the car space such that the impact on the pedestrian and public realms is acceptable.
Currently this section of Garnet Street, to the west of High Street, does not have a strong landscape character, and features minimal canopy tree planting. Indeed, it was Mr Patrick's evidence that Garnet Street features a notable lack of canopy trees within private gardens, and that front yards to the east of the subject site have an absence of any garden treatment, with only open lawn provided at nos. 33-37 Garnet Street. Further, the landscape character of the Gertrude Street streetscape (to the south of the subject site) is predominantly derived from the street trees, rather than from the plantings within the private front garden areas. In this context, the additional landscaping as proposed by Mr Patrick's landscape plan does enhance the streetscape.
It is noteworthy that the expert landscaping evidence of Mr Patrick was unchallenged by the Council. His landscape plan shows the planting of two canopy trees, and a range of other lower-level plantings which will make a positive contribution to the streetscape. The proposed landscaping also ensures that the visual impact of the on-site car space is appropriately softened. It was Mr Patrick's verbal evidence that a third canopy tree could be planted in the landscaped area along the eastern side of the pedestrian path, although in his opinion it is unnecessary. This means it is possible for the front garden area of each dwelling to provide three canopy trees (being six in total). Mr Patrick's landscape plan shows the proposed car space to have paving with a patterned finish, dissected by a 500mm wide centrally placed landscape strip. It was his evidence that this central 500mm strip could be lawn, gravel or permeable concrete, and that any of these options would work.
As already mentioned, crossovers and driveways are very characteristic of this section of Garnet Street, with each property having one crossover, and one property featuring two crossovers (at no. 42 Garnet Street). The proposed front car space is consistent with the properties at nos. 41 and 43 Garnet Street which each have one on-site car space in their front garden area. I do not consider that the existing on-site car parking in front of nos. 41 and 43 Garnet Street detracts from the streetscape. Similarly, I find that the proposal for Townhouse 2 sits comfortably within the streetscape, and respects the character of the area, and therefore Clause 55.02-1 is met.
The proposal meets Standard B9 (Permeability), Standard B13 (Landscaping) and Standard B14 (Access). Accordingly, I am satisfied that the associated objectives of these standards are met.
Although this issue was not specifically referenced in its grounds of refusal, the Council submitted that the proposal is contrary to the sustainable transport outcomes of the Planning Policy Framework (PPF) which broadly seek to reduce car dependency and increase the use of sustainable transport modes (see for instance, Clause 18.01-3S). I do not think that this is a reason to refuse the application, particularly given that there is no specific permission required under the planning scheme for the proposed number of on-site car spaces. The proposal does not impact the subject site's excellent locational attributes which serve to encourage the desired walking, cycling and public transport use consistent with the sustainable transport policies of the planning scheme.
Overall, I am satisfied that the proposal accords with the purposes of the Heritage Overlay, acceptably achieves the relevant policies of the PPF, and meets all of the applicable Clause 55 objectives.

Giannopoulas v Darebin CC [2025] VCAT 604

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (2)

Giannopoulas v Darebin CC [2025] VCAT 604 (8 July 2025)