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[2009] VCAT 2148
appellant. The responsible authority's decision was set aside. A permit was granted and directed to be issued for construction of a two-storey building containing eight apartments and basement car parking, in...
VCAT approved a proposed eight-apartment development on a corner site in Black Rock. It considered that the design fitted the coastal Beach Road context and that its form and setbacks would not dominate the corner. It accepted that the basement wall could be closer to the rear boundary because it was relatively low, could be screened, and did not face adjoining habitable-room windows or private open space. The Tribunal was not persuaded that the non-native Canary Island Date Palm had to be retained under the cited vegetation overlay. The permit was made subject to detailed conditions, including landscaping, overlooking screening, parking and access, stormwater, construction management, and an environmental audit. The supplied reasons do not identify or analyse earlier or later cases, so this decision's treatment by other courts cannot be determined from this text.
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2,152 words · generated 02/10/2026
1 cited instrument linked from this judgment.
Jopsal Pty Ltd applied for a permit to construct a two-storey building containing eight apartments and a basement car park with 20 spaces at 284 Beach Road, Black Rock. The site was a 982-square-metre corner allotment at Beach Road and Sylvia Crescent. It was in the Residential 1 Zone, with Vegetation Protection Overlay Schedule 3 and Design and Development Overlay Schedule 1 applying. The proposal also included roof decks for four dwellings.
The case came to VCAT under section 79 of the Planning and Environment Act 1987 after Bayside City Council did not make a decision on the permit application. Council told the Tribunal that it would have refused the application. Its stated concerns included neighbourhood character, compliance with the Residential 1 Zone schedule's site coverage and setback requirements, several clause 55 standards, landscaping, and the Vegetation Protection Overlay.
The decision records an important nearby context. Beach Road had contemporary two-storey homes and medium-density development, often with large windows and balconies oriented towards Port Phillip Bay. Sylvia Crescent was more typically characterised by detached single-storey dwellings. A planning permit had also been granted for a two-storey dwelling on the adjoining property to the south, with a stated maximum height of about 8.9 metres including its roof terrace. The proposed building height was also 8.9 metres.
The adjoining owners, RJ and GL Kind, raised concerns at the hearing. These included the palm tree on the site, a possible relocated light pole affecting their view, and the effects of the development. The Tribunal recorded that the site's Canary Island Date Palm was visible from surrounding locations but did not, in its view, make a special contribution to the area's amenity. It also said the light pole's location was a matter for the service provider, rather than something controlled by a planning permit.
The Tribunal set aside the responsible authority's decision and directed that a permit issue. The permit allowed the eight apartments and basement parking, subject to the plans and conditions in Appendix A. The conditions included revised plans, a landscape plan, screening to reduce overlooking, parking and access requirements, stormwater controls, a construction management plan, and an environmental audit requirement.
There is an address inconsistency in the supplied reasons: paragraph 1 under “Reasons” refers to “234 Beach Road”, while the case details, subject land, order, and permit application identify the site as 284 Beach Road. The order itself concerns 284 Beach Road.
The Tribunal's central assessment was that the proposal responded adequately to the site's neighbourhood context. It accepted that the Beach Road frontage was characterised by substantial contemporary two-storey development, often designed to take advantage of bay views. The building's articulation, varied setbacks and height, windows, balconies, and mixture of façade materials helped it sit within that context. The Tribunal also considered the design along Sylvia Crescent and the transition from the corner towards the adjoining property to the south.
That assessment was not based on treating the entire surrounding area as uniform. The reasons expressly distinguish Beach Road from Sylvia Crescent. The first had a substantial contemporary two-storey character; the second was generally single-storey and detached. The Tribunal nevertheless considered a two-metre setback to Sylvia Crescent appropriate in context, noting the nearby townhouses opposite had setbacks of approximately 2.8 to 2.9 metres. It rejected Council's suggested 3.4-metre setback along that frontage.
The setback issue also involved the basement wall near the rear boundary. The zone schedule variation described in the reasons called for a three-metre rear setback, while the basement wall was between 1.4 and 2 metres from that boundary. The Tribunal accepted the applicant's town planner's evidence that the reduced setback was appropriate. Relevant considerations were the wall's 2.4-metre height, the opportunity for landscaping to screen it, and its position away from habitable-room windows and private open space on the neighbouring property.
On landscaping, Council argued that the design should retain the Canary Island Date Palm. The Tribunal considered that the palm was not native to Australia and therefore did not require a permit for removal under Vegetation Protection Overlay Schedule 3, as described in the reasons. It also made a factual assessment that the palm did not make a special contribution to the area. Instead, it considered that the front setback, Sylvia Crescent frontage, and rear of the site could accommodate landscaping that would enhance the corner site. The permit then required a detailed landscape plan, planting, irrigation, completion, and maintenance.
The Tribunal also addressed overlooking and roof decks. It considered that the roof decks met the Design and Development Overlay Schedule 1 requirements for setbacks and 1.7-metre screening, and would not have a visual impact on the street, coastal environment, or adjoining properties. For upper-level balconies, it recognised the potential for overlooking ground-level private open space. Rather than require translucent glazing up to 1.7 metres across the relevant balcony frontage, it identified a horizontal screen extending above the one-metre glass balustrade as a way to reduce direct downward views while retaining bay views. The final Appendix A conditions require a horizontal screen for that purpose.
Other design and practical concerns were dealt with through the permit conditions. These included a two-by-two-metre fence splay with low-level planting at the intersection, removal of redundant vehicle crossings, relocation of the power pole to enable car-park access, forward entry and exit for parking spaces, stormwater detention and drainage, construction traffic management, and waste management.
This decision does not purport to change the law or formulate a new general test. The reasons apply provisions of the Bayside Planning Scheme to a particular development and site. In particular, they identify clause 22.07, clause 55 and its standards, the Residential 1 Zone schedule variation to Standard B17, Vegetation Protection Overlay Schedule 3, and Design and Development Overlay Schedule 1.
Before the decision, the Council had not made a formal determination of the application. It advised VCAT that it would have refused the proposal on specified grounds. The Tribunal's order then set aside the responsible authority's decision and directed that a permit issue. The case therefore records the outcome of a merits review, not an appellate ruling that changed the meaning of legislation.
The decision's practical contribution is its application of planning controls to a mixed-character corner site. The Tribunal considered how the more intensive Beach Road form related to the generally lower-scale Sylvia Crescent context, and assessed the proposal's setbacks and articulation against nearby development. It also used conditions to address matters that could be managed through detailed design or construction requirements.
The supplied judgment does not set out a pre-existing line of cases, compare competing legal tests, or identify a change in doctrine. It would therefore be too broad to treat its site-specific findings as a general rule that an eight-unit development, a particular height, or a particular setback is acceptable in other locations. Its reasoning depends on the evidence and planning context it records.
The Tribunal said the development was “in keeping with the preferred neighbourhood character of the area” and described it as a “contemporary attractive building” reflecting its setting towards the Bay. In plain English, it considered the proposal's design consistent with the character policy for this location, particularly the coastal and contemporary character along Beach Road. That conclusion was made on the facts before it, not stated as a universal design rule.
On setbacks, the Tribunal said they were appropriate “in this context” and would not cause the built form to dominate the corner site. The qualifying words matter. The decision connects the setback conclusion to the surrounding buildings, the corner location, and the relationship between Beach Road and Sylvia Crescent. It does not say that the same dimensions will be suitable on every corner site.
For the basement wall, the Tribunal accepted a setback smaller than the schedule variation described in its reasons. It relied on the wall's height, landscaping potential, and lack of direct relationship to neighbouring habitable-room windows or private open space. In practical terms, the Tribunal treated the effect of the wall and its ability to be screened as relevant to its planning assessment.
On the tree, the Tribunal's reasoning had two parts. First, it stated that the Canary Island Date Palm was not native to Australia and that the cited overlay's permit trigger concerned native vegetation. Second, it assessed whether the palm made a special contribution to local amenity and concluded that it did not. The decision thus does not establish that all mature or visible trees can be removed without planning scrutiny.
The Tribunal's discussion of overlooking illustrates its use of design conditions. It considered that an additional horizontal screen could reduce direct views downwards while avoiding the loss of bay views associated with higher translucent balustrades. The permit conditions translate that assessment into a requirement for screening above the glass balustrade.
The decision is most directly relevant as an example for planning matters involving a residential development on a corner site where surrounding character differs between the two street frontages. Here, the Tribunal separately considered the more intensive, contemporary Beach Road setting and the generally single-storey Sylvia Crescent setting. A similar factual pattern would make the same kind of comparative character analysis relevant, but the decision does not predetermine the outcome.
It may also be relevant where a planning assessment concerns a reduced setback for a relatively low basement wall. The Tribunal's reasoning depended on specific features: the wall's stated height, its capacity to be screened, and its position relative to neighbouring windows and private open space. Different adjoining uses, a taller wall, limited planting space, or more direct effects would be different facts for assessment.
The tree issue may be relevant where an overlay's stated permit trigger is confined to native vegetation and the tree in question is non-native. The decision also considered the tree's contribution to local amenity, so its reasoning was not solely a botanical classification. The applicable scheme wording and the particular tree's status would need to be checked in any other matter.
The balcony discussion may be relevant to designs where upper-level outdoor areas risk overlooking ground-level private open space, particularly where views or outlook are also a design consideration. The Tribunal considered a screen as a means of balancing those matters. It did not say that a horizontal screen is always sufficient or that other screening solutions are inappropriate.
More generally, the decision illustrates the use of permit conditions to refine landscape plans, materials, parking layout, stormwater, construction activities, and overlooking measures. The conditions are specific to this permit and should not be treated as standard requirements for every residential proposal.
The supplied judgment contains no discussion of later decisions and provides no citations to subsequent cases. It is therefore not possible, from this source alone, to say whether later courts or tribunals followed, distinguished, applied, or otherwise treated this decision.
The decision is a VCAT Planning and Environment List merits-review determination by Senior Member Jeanette G Rickards. The text provided does not discuss the decision's precedential status or identify any higher-court treatment. Its reasoning should be described as a site-specific application of planning scheme provisions, rather than as a general legal principle adopted by later courts.
A legal researcher seeking the later treatment would need sources beyond the supplied judgment. No later-case history should be inferred from the fact that the decision was reported or that its catchwords identify planning topics.
The reasons do not reproduce the full text of the relevant planning scheme provisions. They summarise the relevant character policy, overlay permit trigger, and setback variation, but do not provide a provision-by-provision interpretation. As a result, this source alone cannot resolve how the same wording would apply to a materially different site or proposal.
The decision also records the Tribunal's acceptance that a Cultural Heritage Management Plan was unnecessary because the site had undergone significant ground disturbance and all parties considered it exempt. It does not set out the exemption provisions or analyse the legal requirements for establishing the exemption. Its treatment of that point is therefore limited to the agreed factual and procedural position recorded in the reasons.
The supplied text does not include numbered paragraphs, despite the structured extraction request referring to paragraph numbers. The quotation references therefore cannot be matched to numbered paragraphs from this version. The reasons also contain the noted 234/284 Beach Road inconsistency.
Finally, the decision does not establish how the permit conditions were implemented, whether any later amendment or enforcement issue arose, or how later decision-makers treated the merits reasoning. Those matters are outside the supplied text.
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i The proposed landscape treatment for the site including the existing and proposed species in accordance with Condition 11.
ii All wall heights above ground level are to be nominated on the plans.
iii All paving (except driveways) must be permeable. Details of the permeability of the paving must be supplied to the satisfaction of the Responsible Authority.
iv A schedule showing the materials, colour (including two samples) and finish of all external walls, roof, fascias, window frames and paving.
vii All plant and equipment (including air conditioning units, heating units, hot water systems, etc.) which is proposed to be located externally shall be identified on the plans and located to the satisfaction of the Responsible Authority.
viii Identification of a stormwater retention tank area at basement level.
i be constructed and properly formed to such levels that they can be used in accordance with the plans;
iii be line marked to indicate each car space and all access lanes;
iv be clearly marked to show the direction of traffic along driveways;
v the car park comply with Table B2 in clause 55.03-11 of the Bayside Planning Scheme and otherwise be generally in accordance with Australian Standard 2890.1:2004 to the satisfaction of the Responsible Authority.
ix show a minimum 2 x 2 metre fence splay to be provided at the Beach Road/Sylvia Crescent intersection, with low level landscaping;
xi show all redundant vehicle crossings removed and reinstated (at the permit holder's expense) to the satisfaction of the Responsible Authority;
xii show the removal and relocation of the power pole (at the permit holder's expense) to enable access to the car park to the satisfaction of the Responsible Authority.
xiii Car spaces, access lanes and driveways must be kept available for these purposes at all times.
8. All car parking spaces must be designed to allow all vehicles to drive forwards both when entering and leaving the property.
9. Protective kerbs must be provided to the satisfaction of the Responsible Authority to prevent damage to fences or landscaped areas.
10. The existing street tree/s must not be removed or damaged.
11. Before the development starts, a landscape plan must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must show:
i buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary;
ii details of surface finishes of pathways and driveways;
iii a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;
iv landscaping and planting within all open areas of the site.
The landscape plan must also indicate that an in-ground irrigation system is to be provided to all landscaped areas.
12. Before the occupation of the development starts, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
13. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
14**.** Before the construction or carrying out of any buildings and works a certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or an environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the sensitive use (residential). A copy of the Certificate of Environment Audit must be submitted to the Responsible Authority prior to the commencement of carrying out of any buildings and works.
15. Before the development starts, a waste management plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must include:
i Details regarding waste collection to be undertaken by a Commercial Waste collector.
ii Details of space made available for bin storage.
16. Before demolition and construction commences Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. Construction operations on and adjacent to the site must conform to this endorsed plan. Three copies of the plan must be submitted. The plan must be generally in accordance with the plans submitted but must include:
i All traffic management plans for the site demolition, excavation, deliveries and other construction related activities that will affect vehicle and pedestrian traffic using Beach Road and Sylvia Crescent.
ii The location of all areas on-and/or off-site to be used for staff parking.
iii A parking management plan for all associated construction vehicles.
iv Pedestrian access along the Beach Road and Sylvia Crescent footpaths must be maintained at all times. Any damage to the footpaths must be repaired immediately.
v All site sheds, portable toilet, storage and materials, etc must be confined to the site.
17. Stormwater discharge is to be retained on site to the south of the basement. The development is to have a 'Stormwater Detention System' installed of a design capacity to be Council approved. The Legal Point of Discharge for this development is to be the Council drain located at the rear of the property. The Developer should be satisfied that levels permit the adoption of the above discharge point.
18. Basement drainage (seepage water/agricultural) must be pumped to the satisfaction of the responsible authority and not be discharged to the kerb and channel.
19. Drainage associated with the basement during construction (seepage and agricultural waters are to be filtered to rainwater clarity) must be pumped to the satisfaction of the responsible authority and not to be discharged to the kerb and channel unless directed otherwise.
20. Before the development begins, detailed plans (3 sets) indicating the method of stormwater discharge to the nominated 'Legal Point of Discharge' (and Stormwater Detention Systems where applicable), must be prepared and lodged with the Responsible Authority for approval.
21. The driveway/parking areas/paved areas/paths and 'pervious' pavements must be graded/drained to prevent stormwater discharge either onto the footpath or into the adjacent properties.
22. This permit will expire if one of the following circumstances applies:
i the development is not started within two years of the date of this permit.
ii the development is not completed within four years of the date of this permit.
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.
Jopsal Pty Ltd
Bayside CC & Ors [2009] VCAT 2148
The responsible authority's decision was set aside. A permit was granted and directed to be issued for construction of a two-storey building containing eight apartments and basement car parking, in accordance with endorsed plans and conditions in Appendix A.