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[2001] VCAT 1611
appellant. The Council's decision was set aside. A permit was granted for a second dwelling at 16 Leslie Street, St. Albans, generally in accordance with the endorsed plans and subject to 15 conditions. The...
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VCAT allowed John Ivosevic's review of Brimbank City Council's refusal of a second dwelling. It considered the site and proposal individually, finding that additional housing variety was consistent with Council policy and that parking and open space were adequate. It addressed design concerns through permit conditions, including a larger setback to Eisner Street, landscaping details and changes to improve the existing dwelling's access to open space. The supplied judgment contains no cited earlier or later cases and does not establish how later courts treated the decision.
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In Ivosevic v Brimbank CC [2001] VCAT 1611, John Ivosevic applied to the Victorian Civil and Administrative Tribunal’s Planning List for review of Brimbank City Council’s refusal of a permit for a second dwelling at 16 Leslie Street, St. Albans. The judgment identifies the application as one made under section 77 of the (para 1).
The site was a 560-square-metre corner lot at Leslie Street and Eisner Street, in the Residential 1 zone. It contained an existing single-storey dwelling and had a 2.44-metre-wide easement along its eastern boundary. The surrounding area was described as established residential housing, mainly detached, single-storey dwellings. Nearby shops and Churchill Reserve were said to be within 500 metres (para 3).
The proposal was for a new single-storey, one-bedroom dwelling behind the existing dwelling. It included a garage and approximately 26 square metres of private open space. The application had originally been for a two-bedroom dwelling, but was revised to one bedroom. The judgment says that advertising of the revised proposal attracted no objections (paras 2, 8).
The Council refused the proposal on grounds relating to the Good Design Guide, its Medium Density Development Guidelines, the adequacy of open space and orderly and proper planning (para 9). At the hearing, the Member said the parties discussed permit conditions and that she was minded to grant a permit subject to appropriate amendments to the site and dwelling design (para 1).
VCAT set aside the Council’s refusal and granted a permit subject to conditions. These included a minimum three-metre setback for Unit 2 from Eisner Street, redesign of Unit 1 to connect a major habitable room to private open space, a detailed landscaping plan, a covered parking space for the existing dwelling, drainage requirements and a permit expiry provision. The Tribunal directed the Council to issue the permit under section 85(1)(b) of the Act.
The document lists 14 April 2000 as the hearing date but does not state a date of decision in the supplied extract. The medium neutral citation is [2001] VCAT 1611. The reasons are by A. J. Quirk, Member.
The decision was an evaluative planning judgment tied to the particular site and proposal. It did not treat every concern raised by the Council as requiring refusal. Instead, the Member assessed the design and amenity issues and concluded that several could be addressed by changes secured through permit conditions.
A positive consideration was the contribution of the extra dwelling to housing variety. The Member found that it met a need for dwelling variety and changing demographics and that this accorded with Council policies in the Municipal Strategic Statement (para 12). The judgment also recorded the Council’s strategic support for high-quality, creative urban design responding to changing lifestyles and housing variety (para 7). It does not set out the text of the strategic policy or a broader legal test for how much weight that policy must receive.
Parking was another factor. The Member considered adequate parking was provided on site. The streets were not subject to parking restrictions, and the additional crossing on Eisner Street would result in the loss of one parking space (para 12). The permit nevertheless required a covered car parking space for the existing dwelling and imposed requirements for vehicle crossings, parking areas and access lanes (conditions 1(d), 5-7). This shows that the finding of adequacy did not remove the need for practical design and construction conditions.
The Member found adequate secluded open space for the second dwelling and a good relationship between that dwelling’s internal and external spaces (para 12). The location of the existing dwelling’s open space was also accepted. The Member said street-side northern open spaces should not be prohibited as a general rule, and that each case should be considered on its circumstances. Here, the existing fence along Eisner Street and a distance of more than 7.5 metres from Leslie Street supported acceptance of the arrangement (para 12).
At the same time, the Tribunal required the existing dwelling’s design to be changed to improve the connection between a major habitable room and its open space. It also required Unit 2 to be set back at least three metres from Eisner Street, with the Member noting that compliance with the Guide parameters could be achieved by reducing the setback to the north boundary for part of the building (para 12). These findings indicate that the permit was not an unconditional endorsement of the plans as lodged.
Other conditions addressed landscaping, drainage, vehicle access, mail and newspapers, aerials, and time limits for starting and completing the development. The decision therefore reflects a balance: the Member accepted the proposal in principle, but made approval dependent on specified design changes and ongoing requirements.
The judgment does not provide a detailed analysis of every refusal ground or reproduce the full Good Design Guide or Council guidelines. Its stated reasons are concise. A reader should therefore distinguish the express findings in paragraph 12 and the permit conditions from any broader propositions that might be inferred from the outcome.
Before this decision, as the judgment describes the planning position, the land was in the Residential 1 zone and a permit was required for a second dwelling under clause 32.01-4 of the Brimbank Planning Scheme. Clause 32.01-4 also required a design response and site analysis. The judgment notes that clause 52.04 related to the Good Design Guide and that no overlay controls applied (paras 4-6).
The Council’s decision was a refusal. Its stated reasons concerned compliance with design guidance, the development’s open space and the desirability of the proposal as a matter of orderly planning (para 9). The review placed that refusal before VCAT under section 77 of the Planning and Environment Act 1987.
After the review, the refusal no longer stood. VCAT granted a permit and directed the Council to issue it under section 85(1)(b) of the Act. The permission remained subject to the listed conditions, including plans to be approved and endorsed before the use or development began, landscaping and parking works, and expiry periods (permit conditions 1-15).
The supplied reasons do not say that the underlying statutory or planning scheme provisions changed. Nor do they announce a new general test for second dwellings, establish a numerical rule for density or open space, or say that the Good Design Guide can be disregarded. The decision’s useful planning propositions are narrower: the Member assessed the proposal in its local context, treated policy support for housing variety as relevant, and found that particular design issues could be addressed through conditions.
There is no cited authority in the supplied judgment, so no case-law relationship can be extracted from the text. This analysis also cannot establish any subsequent change in legislation, policy or planning scheme provisions. It describes only the position and reasoning recorded in this decision.
At paragraph 5, the Member states that a permit was required for a second dwelling under clause 32.01-4, and that the clause required a design response and site analysis. In plain English, the proposal could not proceed simply because it was residential development: it required planning permission and supporting design material under the identified scheme provision.
At paragraph 9, the Council’s reasons for refusal refer to the Good Design Guide and Council guidelines, inadequate open space and orderly planning. These are the Council’s stated reasons, not findings that the Tribunal ultimately accepted. The Tribunal’s task was to assess the proposal on review.
At paragraph 12, the Member says the second dwelling met a need for housing variety and changing demographics consistent with Council policy. In plain English, the provision of another, smaller dwelling was treated as a benefit in the planning assessment, not merely as an increase in the number of dwellings.
The same paragraph records findings of adequate on-site parking and adequate secluded open space for the second dwelling. It also describes the relationship between that dwelling’s internal and external spaces as good. These are case-specific findings about the submitted proposal and this particular lot.
The Member’s observation that street-side northern open spaces should not be prohibited “as a general rule” is qualified immediately by the statement that each circumstance should be considered (para 12). The site-specific reasons were the existing Eisner Street fence and the space’s distance of more than 7.5 metres from Leslie Street. It should not be read as an unqualified approval of all front or street-side open-space arrangements.
The permit conditions translate the Member’s design findings into practical requirements. In particular, the revised plans had to show a three-metre setback to Eisner Street and improved connectivity between a major habitable room in Unit 1 and private open space (condition 1(a)-(b)). The condition requiring a landscaping plan also called for additional planting at the front of the new fence on Leslie Street (condition 1(c)). These measures show how the final permission was made dependent on changes and details not resolved in the reasons alone.
The decision is most directly relevant as an example involving a permit refusal for a second dwelling on a residentially zoned, established-area site. Its salient circumstances include a corner lot, an existing detached dwelling, a proposed smaller dwelling, no objections to the revised application, and design concerns that the Tribunal considered capable of being resolved through conditions (paras 2-9, 12).
The decision may be useful to compare where an authority objects to the layout, access, parking, landscaping or open space of a second dwelling, especially if the practical concerns can be addressed by specific plan changes or construction and maintenance conditions. It also illustrates that the Member considered housing variety and changing demographics alongside immediate site-design issues.
The comparison should not be reduced to one feature. The Member relied on several factors together: the site's location and context, policy support, parking and street conditions, available open space, the existing fence, the setback from Leslie Street, and the ability to revise the plans (paras 3, 7, 12). A proposal that differs on those matters may not be treated similarly. The judgment does not say that a 560-square-metre site, a one-bedroom second dwelling, or any particular density automatically warrants approval.
The case also offers a limited planning point about street-side open space. A decision-maker should consider the actual circumstances rather than treating all northern open space at the street side of a dwelling as unacceptable. The Member's observation was expressly framed as a general comment followed by a direction to consider each case individually (para 12).
This is a Tribunal decision made on its record, not a substitute for checking the current planning scheme, controls, policy and facts in another matter. The supplied judgment says there were no overlay controls at this site (para 6); it does not establish the controls applicable to any other land.
The supplied judgment does not cite any earlier cases, and the supplied material contains no later decisions discussing or applying Ivosevic v Brimbank CC. It is therefore not possible, from this source alone, to state whether later courts or tribunals followed, distinguished, explained, approved or rejected it.
The decision can be described only by reference to its own reasons and outcome. Its central findings were made by a VCAT Member in a permit review, based on the proposal, site and planning material before the Tribunal. The text does not claim that the Member was applying a binding precedent or formulating a general rule for future applications.
Any account of later treatment would require later judgments or other legal sources, none of which are included in the supplied material. No claim about the decision’s current precedential status or subsequent reception can responsibly be made on the present source record.
The judgment is brief and leaves some matters unexplained. It does not reproduce the full text of the Good Design Guide, Council’s Medium Density Development Guidelines, the Municipal Strategic Statement or the relevant planning scheme provisions. It records the Council’s objections and the Member’s conclusions, but does not provide a criterion-by-criterion assessment against those documents (paras 5-10, 12).
The reasons also do not give a detailed calculation of the development’s density or explain how that calculation affected the outcome. The proposal was described as having a density of one dwelling per 280 square metres (para 2), but the decision does not identify that figure as decisive.
The judgment mentions that the site appeared to be affected by a covenant, but says complete details were not presented to Council (para 3). It does not determine the covenant’s effect or explain whether it affected the Tribunal’s decision. This should not be confused with a finding that the covenant was irrelevant or resolved.
There is a difference between the general description that the permit is granted “generally in accordance with the endorsed plans” and condition 1, which requires further plans to be submitted and approved before the use or development begins. The operative plan details and the Responsible Authority’s later assessment of them are not included in the supplied extract.
Finally, the available text does not provide the date of decision, despite stating a hearing date of 14 April 2000 and a 2001 medium neutral citation. It also does not include subsequent proceedings or later treatment. Those matters remain outside what can be established from this judgment alone.
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Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit.
1. The order of the Tribunal is that the decision of the Responsible Authority is set aside.
2. A permit is granted for a second dwelling at 16 Leslie Street, St. Albans generally in accordance with the endorsed plans and subject to the following conditions:
1. The Before the use and/or development begins, 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 two copies must be provided. The plans must show:
(a) Setback of Unit 2 to a minimum of 3 metres to Eisner Street.
(b) Redesign of Unit 1 to provide connectivity to private open space from major habitable room.
(c) A detailed landscaping plan incorporating front fence details and report prepared by a suitably qualified designer, both of which must be to the satisfaction of the Responsible Authority. This plan will include additional landscaping to the front of the new fenceline fronting onto Leslie Street.
(d) One covered car parking space for the existing dwelling.
2. The use and/or development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. Before the occupation of the buildings authorised by this permit, landscaping must be planted to the satisfaction of the Responsible Authority and be satisfactorily maintained thereafter.
4. All landscaped gardens and planting shown on the endorsed plan must, after establishment, be maintained to the satisfaction of the Responsible Authority and must not be used for any other purpose.
5. Vehicle crossing(s) shall be constructed in the location(s) shown on the endorsed plan to a standard satisfactory to the Responsible Authority. The relocation of any services including electricity poles and the like shall be at the expense of the developer.
6. Redundant vehicle crossing must be removed to Council satisfaction.
7. Before the use and/or development begins, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:
(a) Constructed to the satisfaction of the Responsible Authority.
(b) Properly formed to such levels that they can be used in accordance with the plans.
(c) Surfaced with an all-weather seal coat to the satisfaction of the Responsible Authority.
(d) Drained and maintained to the satisfaction of the Responsible Authority.
(e) If new vehicle crossing is to be constructed the road pavement is to be saw cut.
Parking areas and access lanes must be kept available for these purposes at all times.
8. The point of discharge for both units is to Eisner Street or Leslie Street. Future owners of the property may be required to contribute towards construction of rear easement drainage in the future.
9. All impervious areas to be drained to the internal underground drainage and connected to a point of discharge nominate by Council's Engineering Services section.
10. The internal driveways and parking areas are to be shaped such that the areas drain to the underground drainage system.
11. The internal driveway is to be edged with concrete kerb between this property and the adjoining property.
12. Where pavement is to be drained to fall towards a vehicle crossing, a grated drain is required at the building line/crossing for drainage.
13. No more than one television aerial may be erected per building on the land without the written consent of the Responsible Authority.
14. Provision must be made for a suitable structure or structures for receiving mail and newspapers. Such area shall be kept clean and tidy. The structure shall include separate provision for each unit to receive papers.
15. This permit will expire if one of the following circumstances applies:
(a) The development and use is/are not started within two years of the date of this permit.
(b) The development is not completed within four years of the date of this permit.
2. The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.
3. 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.
For the Responsible Authority: Mr C. Jules Griffith
1. At the end of the hearing the parties engaged in a discussion about conditions following which I indicated I was of a mind to grant a Permit subject to appropriate amendments to the design of both the site and dwelling.
2. Mr Griffith's description of this has been adopted. It reads as follows:
It is proposed to construct an additional single-storey brick dwelling to the rear of an existing single-storey brick dwelling. The existing dwelling contains three bedrooms, lounge room, kitchen, laundry and bathroom facilities. Two tandem car parking spaces for the existing dwelling are proposed and would be accessed via a new crossing on Eisner Street. Private open space is provided to the front of the dwelling, behind a proposed 1.5 metre high fence and the existing high boundary fence along Eisner Street.
The additional dwelling will front onto Eisner Street with a single garage proposed over the easement along the east boundary. The dwelling would contain one bedroom, an open plan living/meals/kitchen area, additional dining area and laundry and bathroom facilities. Approximately 26 sq. metres of private open space would be created to the rear of the dwelling along the eastern boundary.
The development has a proposed density of 1:280 sq. metres."
3. For efficiency, I have also adopted Mr Griffith's description of this:
"The subject site is located on the south-east corner of Leslie Street and Eisner Street. It has a total site area of approximately 560 sq. metres, with a splayed frontage to Leslie Street of approximately 13.40 metres in length and a depth of 35.09 metres. The lot is generally flat and has a 2.44 metre wide easement along the east boundary. The land is currently occupied by a single storey detached brick dwelling which fronts onto Leslie Street.
The site is located within an established area and is surrounded by detached single-storey brick veneer and weatherboard dwellings. Most of the nearby dwellings have substantial front setbacks, generous side setbacks and large rear yards. While the immediate area is predominantly residential, local shops and Churchill Reserve is within 500 metres of the site.
The site appears to be affected by a covenant but complete details of the covenant were not presented to Council.
5. The land is zoned Residential 1. A permit is required for a second dwelling under Clause 32.01-4 and this Clause also requires the production of a design response and site analysis. Clause 52.04 relates to the Good Design Guide.
7. The Municipal Strategic Statement and Urban Design Strategy referred to in Mr Griffith's submission promote high quality, creative urban design in response to changing lifestyles and housing variety.
8. Originally an application was made for a two bedroom dwelling but this was later revised to a single bedroom one. Advertising of the revised application did not result in any objections. The Application was refused on the grounds as listed and the Applicant for Review lodged several days later.
1. The proposal does not satisfactorily meet the objectives, criteria and/or techniques of the Good Design Guide in relation to density, site layout and landscaping, building envelope, car parking and vehicle access, and open space.
2. The proposed development fails to comply with the objectives of the Brimbank City Council Guidelines for Medium Density Development.
3. The area set aside for open space purposes is below the area required to ensure a reasonable living environment.
4. The proposal does not constitute orderly and proper planning.
1. The proposed development and use will not cause any unreasonable detriment to the amenity of the area.
2. The proposed development is entirely appropriate having regard to neighbourhood context.
3. The proposed development is an appropriate response to the subject site and complies with the elements of the Good Design Guide and objectives of the residential zone and State Planning Strategies for Medium Density Housing.
4. There are no compelling reasons that justify a refusal of the permit on the grounds of overall non-compliance with the Good Design Guide and Council's Design Guidelines for multi unit development.
11. Both parties tabled written submissions, photographs and plans. These are retained on the Tribunal's file and are available for perusal.
12. My decision is based on the following factors:
1. The proposed second dwelling meets a need for dwelling variety and changing demographics and this accords with Council Policies, encapsulated in the Municipal Strategic Statement.
2. Adequate parking is provided on site. The abutting streets are not constrained by parking restrictions and only one space is lost because of an extra crossing in Eisner Street.
3. The design of the second dwelling can be amended to provide a 3 metre setback from Eisner Street so that it complies with the Guide parameters by reducing the setback to the north boundary for part of the building.
4. One of the parking spaces to be provided for the existing dwelling can be covered by a carport with translucent roofing over windows.
5. Adequate secluded open space is provided for the second dwelling and the relationship between its internal/external spaces is good.
6. The internal layout of the existing dwelling can be altered to provide good connectivity between its major habitable rooms and its open space.
7. The position and size of the secluded open space for dwelling one is satisfactory. There should not be prohibition of northern open spaces on the street side of dwellings as a general rule. Each circumstance should be considered. In this case there is an existing fence in Eisner Street and the open space will be setback over 7.5 metres from Leslie Street.
Ivosevic
Brimbank CC [2001] VCAT 1611
The Council's decision was set aside. A permit was granted for a second dwelling at 16 Leslie Street, St. Albans, generally in accordance with the endorsed plans and subject to 15 conditions. The Responsible Authority was directed to issue the permit under section 85(1)(b) of the Planning and Environment Act 1987.