respondent. VCAT varied the Responsible Authority's decision and directed that a permit be issued for construction of one dwelling on the lot (PL07/1082) in accordance with endorsed plans and permit...
Key principles
An application to add a first storey to an existing single storey dwelling must be assessed by balancing policies encouraging urban consolidation and reuse of dwellings against...
Compliance with the numeric standards of Clause 54 (ResCode) is strong guidance, but whether impacts are reasonable or unreasonable is a matter of planning judgment; compliance...
Where a proposed first-floor causes additional overshadowing of adjoining secluded open space in breach of Standard A14, the Tribunal may require an increased first-floor setback...
Minor non-compliances that cause no off-site impacts (for example a 270mm stairwell intrusion for 2.2m) may be accepted where they do not adversely affect neighbours (Compliance...
Issues before the court
Whether adding a first floor to an existing single-storey dwelling is acceptable in the neighbourhood context.
Whether the proposal's non-compliance with Clause 54 standards (overshadowing Standard A14; northern setback intrusion) renders it unacceptable.
Plain English Summary
VCAT reviewed a neighbours' challenge to a Council decision permitting ground and first-floor extensions at 110 Coppin Street (a 417m2 lot). The Tribunal balanced policies favouring urban consolidation with neighbourhood character and amenity controls in Clause 54 (ResCode). It found high numeric compliance but two non-compliances: a minor northern setback intrusion (accepted as causing no off-site impact) and overshadowing to the south (unacceptable). The Tribunal required the first floor to be set back about an additional 1 metre (or raked) so there is no additional overshadowing of the adjoining secluded open spaces, otherwise allowed the development, and directed a permit with conditions (including a max building height of 8.22m and other plan amendments).
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,817 words · generated 15/09/2026
What happened
How to assess visual bulk, height and mass in a neighbourhood with varied building heights.
Cited legislation
1 cited instrument linked from this judgment.
This is a section 82 review at the Victorian Civil and Administrative Tribunal (Planning and Environment List) concerning a proposal to construct ground and first-floor extensions to an existing single-storey Victorian dwelling at 110 Coppin Street, Richmond (site area 417 square metres). The review was brought by adjacent residents (Applicants for Review: Melanie Hendrata & Others) who opposed the permit application lodged by A & N Blackburn Pty Ltd (Respondent/permit applicant). The Responsible Authority was Yarra City Council.
The Tribunal (Member J A Bennett) heard the matter on 24 November 2008, carried out a site inspection immediately after the hearing and delivered reasons and an order on 27 November 2008. The Tribunal varied the decision of the Responsible Authority and directed that a permit issue subject to conditions (order). The permit allows construction of one dwelling on the lot (clause 32.01-3 trigger) with amended plans and specific conditions in the Appendix. The principal contested issues were neighbourhood character, compliance with Clause 54 (ResCode) numeric standards, and overshadowing to the south (Standard A14) affecting the secluded open spaces of No 112 Coppin Street and No 9 Theresa Street.
Why the court decided this way
The Tribunal’s reasoning rests on balancing policy objectives and on site-specific assessment of amenity impacts.
Policy balance: The Tribunal placed weight on both the State and local policies. It acknowledged policies that encourage urban consolidation, reuse/refurbishment of existing dwellings and efficient use of infrastructure (Reasons: Introduction [1]; Is the proposal respectful... [1]). It also recognised policies that require site responsive design and consideration of neighbourhood character (Clauses 21.05-1, 21.05-2, Clause 22.10) and the built form design elements listed in Clause 22.10 (Is the proposal respectful... [1]).
Role of Clause 54 (ResCode): The Tribunal treated Clause 54 as the operative tool for single dwelling proposals on lots under 500m2 (Compliance with Clause 54... [1]). While Clause 54's numeric standards provide guidance and 'deem' compliance with related objectives when met, the Tribunal emphasised that whether impacts are reasonable is ultimately a planning judgment. Thus, numeric compliance is important but not dispositive (Compliance with Clause 54... [1]).
On neighbourhood character the Tribunal emphasised context and variability. It rejected a strict replication test for character: two storey forms and modern materials are not automatically incompatible (Is the proposal respectful... [2]). The Tribunal took a broader streetscape view rather than focussing only on immediately adjoining properties (Is the proposal respectful... [3]). Given the lack of heritage overlays or demolition controls and the presence of modern additions and infill nearby, the Tribunal did not view the proposal as sufficiently discordant to refuse on character grounds (Is the proposal respectful... [4]).
On overshadowing, after inspecting the secluded open spaces of the adjoining properties the Tribunal found they were small and marginal (approximately 38m2 at No 112, 23m2 at No 9) and already partially shadowed by a 2.1m fence. The Tribunal concluded that any additional overshadowing from the proposed first floor was not reasonable and would cause unacceptable amenity loss (Compliance with Clause 54... [3]). It therefore required an additional southern first-floor setback (around 1 metre or a raked arrangement achieving no additional overshadowing) as a permit condition (Appendix condition 1(c)).
On height and bulk the Tribunal acknowledged the ridge rose to 8.22m in part, but noted that perceived bulk is a composite assessment of ridge height, setbacks, wall heights, roof form, materials and articulation. The proposed first floor was well set back from the front (14.34m), had pitched roof and walls set in beneath the ground floor walls, reducing visual bulk. The Tribunal contrasted this with bulkier multi-level buildings nearby and held that visibility of upper levels outside heritage areas is not a policy basis for refusal (Compliance with Clause 54... [4]-[6]). On balance it considered the visual impact acceptable subject to the required changes.
The outcome reflected a site-specific, balanced exercise of planning judgment: allow the development but modify it to prevent additional overshadowing and ensure Clause 54 standards (including balcony Standard A15) are met in the amended plans.
Before and after state of the law
This decision applies established planning principles within the Yarra Planning Scheme and ResCode:
Before: Clause 54 and local policy set objectives and numeric standards guiding single-dwelling development on small lots; local policies encourage both urban consolidation and respect for neighbourhood character. There was tension between permitting modern intensification and protecting amenity.
After: The Tribunal reaffirmed that Clause 54 standards are important but must be applied through planning judgment; compliance with standards is evidence of meeting objectives but non-compliance can be tolerated only where impacts are reasonable. The decision illustrates a practical approach: permit may issue where overall compliance and contextual composition are acceptable, but targeted design changes (additional setback) are an appropriate remedy where identified amenity harm (overshadowing) would otherwise occur.
The judgment does not create new legal doctrine; it exemplifies the balancing approach routinely applied under ResCode and local policies in a municipality experiencing varied infill development.
Key passages with plain-English translation
"The key issue in this case is whether adding a first storey to an existing single storey dwelling is acceptable in the site context." (Introduction [1])
Plain English: The Tribunal framed the dispute narrowly: is adding a second level suitable for this specific lot and street?
"Clause 54 is specifically designed to aid in the assessment of applications for single dwellings on lots less than 500m2 in area." (Compliance with Clause 54 [1])
Plain English: ResCode (Clause 54) is the main checklist for judging this kind of small-lot house extension.
"Respecting neighbourhood character does not mean, for example, that new dwellings must replicate the design and scale of existing dwellings ... or that modern designs and materials should be rejected ..." (Is the proposal respectful... [2])
Plain English: You cannot force new houses to copy older ones; change and modern design are not prohibited by the character concept.
"The proposed first floor extension ... is substantial ... The site is relatively large compared to its neighbours and I can find no justification to allow any amenity loss to the adjoining properties through additional overshadowing." (Compliance with Clause 54 [3])
Plain English: Even though the new house is big, the lot is bigger than neighbours', so the Tribunal will not allow extra shadow to fall on neighbours' small yards.
"There is no policy objective ... that the top levels of buildings, particularly outside heritage areas, should be hidden from view." (Compliance with Clause 54 [6])
Plain English: Being able to see upper floors is not itself a reason to refuse an application where there is no heritage control.
What fact patterns trigger this precedent
This decision is directly relevant where:
A first-floor (or additional storey) is proposed on an existing single-storey dwelling located on a lot between 300–500m2 in a Residential 1 Zone (Clause 32.01-3) and is assessed under Clause 54 (ResCode).
There is a mix of older single-storey dwellings and modern infill in the streetscape, and the site is not in a heritage or built-form overlay.
The proposal largely complies with Clause 54 numeric standards but includes at least one non-compliance that affects off-site amenity (for example overshadowing under Standard A14).
Objectors claim neighbourhood character, visual bulk or overshadowing impacts; the Tribunal will inspect actual secluded open spaces and assess whether any additional overshadowing is reasonable.
Practitioners should expect similar balancing outcomes where the overall compositional design (setbacks, roof form, articulation) can be adjusted to remove specific amenity impacts rather than refuse the entire application.
How later courts have treated it
The judgment itself does not cite later treatment. Within the text the Member refers to "some recent decisions in Yarra and Stonnington" but does not provide citations. Because this is a single VCAT decision, it functions as persuasive Tribunal reasoning within the jurisdiction but is not a binding appellate precedent. Its key value is as an example of applied planning judgment: use Clause 54 as the primary yardstick, inspect and measure actual amenity impacts (not rely solely on numeric comparisons to other approvals), and craft permit conditions to remove identified harms (for example, increased first-floor setback to avoid additional overshadowing).
Users seeking to know how higher courts or other Tribunals have followed or distinguished this decision should check subsequent VCAT decisions or Court of Appeal rulings; that material is outside the scope of this judgment’s text.
Still-open questions
Quantification of 'no additional overshadowing': The Tribunal required the first-floor southern wall to be set back so "there is no additional overshadowing" of specified secluded open spaces. Practically, the condition leaves scope for how to demonstrate compliance (plan geometry, shadow diagrams). Subsequent disputes may arise over the exact drafting and measurement method to satisfy 'no additional overshadowing', for example whether to test at equinox or at specific times of day. The judgment does not prescribe precise technical metrics beyond the approximate additional 1 metre or raked wall approach (Compliance with Clause 54 [3]; Appendix condition 1(c)).
Interaction between numeric standards and planning judgment: The judgment reiterates that compliance with Clause 54 standards is not the sole determinant of acceptability. The precise boundary between when a non-compliance is tolerable (because impacts are reasonable) and when it is not (requiring refusal or adjustment) remains a fact-sensitive exercise. Practitioners must document on-site inspections, shadow diagrams and comparative streetscape analysis to support a planning judgment.
Visibility and 'hidden upper levels' test: The Tribunal states there is no policy objective that upper levels should be hidden outside heritage areas (Compliance with Clause 54 [6]). However, where local policy (Clause 22.10 or overlay provisions) imposes explicit objectives about reducing visual bulk or retaining low-scale character this statement may be qualified. The judgment does not examine a situation with an applicable built-form overlay or detailed neighbourhood character statement; practitioners should not generalise beyond the absence of such controls.
Extent of 'broader area' for neighbourhood character assessment: The Tribunal endorsed assessing character across a broader area than immediate neighbours (Is the proposal respectful... [3]). That raises questions about the appropriate radius or sample of properties to establish the 'character' baseline in any given locality. The Tribunal did not specify metric guidance.
Enforcement and compliance monitoring: The permit conditions require amended plans demonstrating compliance with the set-back and height limits. How strictly these are interpreted at the building permit stage, or whether minor deviations that do not increase overshadowing might be permitted by the Responsible Authority, remains open and fact-dependent.
This analysis explains what the Tribunal said and how it reasoned in Hendrata v Yarra CC [2008] VCAT 2366. It is general legal information only, not legal advice. I can make mistakes. Before you rely on this analysis or use any draft plans or conditions, have a qualified Australian lawyer or planning consultant check it.
Judgment (21 paragraphs)
[1]
Hendrata v Yarra CC [2008] VCAT 2366 (27 November 2008)
[2]
Yarra Planning Scheme; Application pursuant to Section 82 of the Planning and Environment Act 1987; Residential 1 Zone; Ground and first floor additions; Neighbourhood character; Off-site impacts; Overshadowing; Additional first floor side setback required.
I inspected the site, neighbouring dwellings and the locality immediately following the hearing.
[12]
The site is located on the western side of Coppin Street, opposite the end of Brady Street and one lot north of Theresa Street. It has an area of 417 square metres, a frontage of 12.19 metres and a depth of 38.63 metres. The site is developed with a single storey Victorian era dwelling and is set off all boundaries. A carport for one vehicle is provided within the front setback.
[13]
The area contains a variety of housing styles from different time periods. Although traditionally an area of modest single storey dwellings, redevelopment has occurred over many decades and there are examples of new additions to older dwellings and new infill residential development.
[14]
The key issue in this case is whether adding a first storey to an existing single storey dwelling is acceptable in the site context. The area does not have any heritage, built form or neighbourhood character overlays. Policies encouraging urban consolidation, better use of existing facilities, and the reuse and refurbishment of existing dwellings need to be balanced against other policies including those requiring site responsive designs and a consideration of neighbourhood character and impacts on nearby properties.
[15]
Is the proposal respectful of the existing neighbourhood character?
[16]
In the case of residential development, local policies at Clauses 21.05-1 - Element 1: Urban Design Framework, 21.05-2 - Element 2: Residential Land Use and Development and Clause 22.10 - Built Form and Design Policy have broad themes of maintaining and strengthening neighbourhood character; enhancing levels of residential amenity and safety; facilitating high quality design and achieving site responsive design; ensuring that new development makes a positive contribution to the streetscape; and limiting the impact of new development on the amenity of surrounding residential land. Clause 22.10 includes ten design elements to guide in the assessment of built form. These elements include setbacks and building heights, site coverage, off-site amenity, landscaping and fencing.
ResCode (Clause 54) which I discuss later in relation to amenity impacts, and against which this proposal must be assessed, places great emphasis on designs respecting existing or preferred neighbourhood character. Various divisions of the Tribunal have in numerous decisions commented that respecting neighbourhood character does not mean, for example, that new dwellings must replicate the design and scale of existing dwellings, that two storey dwellings are unacceptable just because the existing housing stock is primarily single storey, or that modern designs and materials should be rejected because they introduce new materials or different roof shapes. Change within our urban areas will occur as matter of course and the quite varied character of development that has occurred along the full length of Coppin Street and in nearby streets is indicative of the ongoing and widespread change that has and is occurring within our residential areas.
I accept that an assessment about neighbourhood character can be quite subjective and that people will have different views about what constitutes the character of a particular neighbourhood. However, the planning scheme provides a means by which that assessment can be made based on policies, decision guidelines and controls included in the planning scheme after community input. However imperfect those provisions may seem to be to an individual, they seek to remove arbitrary and ad hoc assessments and provide some consistency from place to place and site to site. For example, guidelines produced by the State Government suggest that determining neighbourhood character needs to take into account a broader area than just the immediately adjoining properties. Assessing neighbourhood or streetscape character only on the basis of the immediately adjoining properties is too narrower a perspective. Establishing the character of a neighbourhood involves more than assessing existing building heights and setbacks of adjoining or nearby dwellings and requires consideration of more intangible factors created by the juxtaposition of building heights, front and side setbacks, landscape character and styles, size and style of rear yards, position of driveways and car parking areas, front fences and the public realm including road and footpath design.
[17]
Compliance with Clause 54 and off site amenity impacts
[18]
Clause 54 is specifically designed to aid in the assessment of applications for single dwellings on lots less than 500m2 in area. Council has assessed the proposal as not creating any unacceptable impacts on the adjoining properties to the south and south west. Clause 54 provides guidance as to what is acceptable but ultimately it is a question of determining whether the impacts are reasonable or unreasonable. Compliance with the relevant standard is deemed to be compliance with the related objective.
In this case, I agree with Messrs Ilsley and Skinner that the proposed development has a high level of compliance with the numeric standards of Clause 54, with only two that are non-compliant. Firstly, the amount of overshadowing to the south does not comply with Standard A14 and secondly, there is a minor non-compliance with the northern setback where the first floor stairwell intrudes 270mm for a length of 2.2 metres. This is on the southern side of the dwelling to the north, has no off site impacts for adjoining neighbours and I support the proposal in so far as this minor area of non-compliance concerned.
The other area of non-compliance concerns overshadowing to the south. Ms Hendrata submitted that the development would create unacceptable overshadowing and loss of sunlight into the secluded open space of her dwelling at No 112 Coppin Street and into the secluded open space at the rear of No 9 Theresa Street. On my inspection I took the opportunity to inspect both these areas, as well as the rear yard of No 7 Theresa Street. No 7 Theresa Street is to the west of the review site and no overshadowing will occur from the redevelopment on the review site. In the case of the other two properties, the area of secluded open space measured using the Rescode formula is already very marginal. No 112 has an area of approximately 38 m2 while No 9 has an area of 23m2. These are the only areas of secluded open space for these dwellings and although they are already shadowed by a 2.1 metre high fence along the northern boundary, I do not accept that any additional overshadowing is either acceptable or reasonable. The proposed first floor extension on the review site is substantial and will create a dwelling with 5 bedrooms, two studies and large living areas on the ground and first floors. The site is relatively large compared to its neighbours and I can find no justification to allow any amenity loss to the adjoining properties through additional overshadowing. Therefore I will require the first floor to be further set back from the southern boundary so there is no additional overshadowing over and above what already occurs to the open space at No 112 Coppin Street and No 9 Theresa Street. In broad terms this means the first floor must be set back around an additional 1 metre. However as discussed at the hearing, it may be possible to rake this wall so the top is set back 1 metre but less closer to the roof. The key test is that the wall is positioned so that no additional overshadowing is caused to the south and I have framed the permit condition to achieve such an outcome.
[19]
Having regard to the above I will vary Council's decision and direct that a permit issue subject to the conditions set out in the Appendix.
[20]
Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The amended plans must be generally in accordance with the plans received by Council on 14 April 2008 but further modified to show:
(a) A full set of revised plans outlining an overall maximum building height of 8.22 metres above natural ground level.
(b) The first-floor balcony is to demonstrate compliance with Standard A15 of clause 54 of the Yarra Planning Scheme.
(c) The southern first wall further set back so that it can be demonstrated that there is no additional overshadowing of the secluded open spaces at No 112 Coppin Street and No 9 Theresa Street (at eave level this will require an additional set back of around 1 metre but the wall can be raked so that it maintains its current position where it meets the roof above the ground floor).
(d) Changes to the position/dimensions of the east facing first floor study windows consequential upon the increased set back required by condition 1 (c) above.
All development must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.
Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7.00 am - 6.00 pm, Monday-Friday (excluding public holidays) and 9.00 am - 3.00 pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.
Any damaged road(s) and footpath(s) adjacent to the development site must be reinstated to the satisfaction of the Responsible Authority
This permit will expire if the development is not commenced within two years of the date of this permit. All development must be completed within four years from the date this permit.
VCAT varied the Responsible Authority's decision and directed that a permit be issued for construction of one dwelling on the lot (PL07/1082) in accordance with endorsed plans and permit conditions listed in the Appendix, including: amended plans showing overall maximum building height of 8.22m, demonstration of compliance with Standard A15 for the balcony, southern first-floor wall further set back so there is no additional overshadowing of No 112 Coppin Street and No 9 Theresa Street (around an additional 1 metre or a raked wall), consequential changes to east-facing study windows, and time limits for commencement and completion (Appendix conditions 1-5).
Although this is a relatively large first floor extension that will be visible from Coppin Street and parts of Theresa Street, I am not convinced that it should be refused or altered significantly because it is so discordant or 'disrespectful' to the character of this area of Richmond. In the absence of heritage, built form or design overlays, or demolition controls, I anticipate that many of the older style dwellings will be replaced or significantly altered to modernise living conditions and upgrade amenity for residents. The neighbouring property to the south provides a good example of a modern addition to an existing older style single storey dwelling, and the new dwellings to the south west are a good example of modern infill development. Based on submissions and my own assessment of the neighbourhood and streetscape character I do not accept that the proposed extension should be refused for reasons concerning neighbourhood/ streetscape character.
I now want to comment about the other issue in contention between the neighbours on the one hand, and the Council and the permit applicant on the other. Ms Hendrata submitted that the height of the new first floor is inconsistent with other developments in the area and that the building mass will result in a dominating structure. Clause 54 provides an objective means to assess height, bulk and mass by incorporating standards deemed to meet the related objective. In this case the building will have a maximum height to a small section of the ridge of 8.22 metres while for most of its length the ridge has a height of 8.015 metres. With the minor exception of the section of northern stairwell, the building also easily meets the standards for side and front setbacks. In the case of the front setback the first floor is set back 14.34 metres from the boundary and behind the roof ridge positioned across the front of the dwelling. The first floor is set back 2.2 metres from the northern boundary and around 3.8 metres from the southern boundary with the inclusion of the changes discussed in the previous paragraph. It is also set off the rear boundary by 9.2 metres.
But assessing the visual impact of a building is not just a tick-a-box exercise against the numeric standards in Clause 54. It is more subtle than that, and although Ms Hendrata was concerned about the height of this building (8.22 metres) compared to Council's previous approvals in the area (around 6.2 metres), it is the juxtaposition of overall height, boundary setbacks, wall heights, roof shape, colours and materials and articulation that influence how a building will be perceived and whether it is acceptable in its site context.
Contrast this proposal, which has an overall ridge height of 8.22/8.015 metres, with some of the bulky and prominent taller buildings in the area which rise vertically for two or three levels. In this case the new first floor, although quite large, is very well set back from the front boundary and the use of a pitched roof with walls set in below the ground floor walls reduces visual bulk. As I have also noted in some recent decisions in Yarra and Stonnington, there is no policy objective or test concerning visibility/invisibility or that the top levels of buildings, particularly outside heritage areas, should be hidden from view.
On balance I consider that the development is acceptable in this site context. I will therefore approve the proposal subject to the additional changes included in the permit conditions.