For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.
[2]
[1] The submissions of the parties, any supporting exhibits provided to the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.
Kuzmanouski v Banyule CC [2026] VCAT 202 (30 March 2026)
The matters of contention are confined in a large part to the issue of underdevelopment.
There is a large body of Tribunal decisions that have considered the new planning controls that arise from council's strategic planning work in the postcode 3081 area. I was provided with a number of these decisions and have considered each in turn, noting that each have their own particular circumstances.
Relevantly, many address the issue of underdevelopment in the context of an area in which council seeks substantial and meaningful change. Many of these decisions make the observation that the underdevelopment of a site, much like overdevelopment, can be a poor planning outcome particularly in the context in which the responsible authority has undertaken extensive strategic consultation, and planning scheme amendment processes, to introduce specific planning controls in the form of a DDO that seek to deliver intensive development outcomes.
The recommendations of the Postcode 3081 UDF document were introduced into the planning scheme through Amendment C120 to the Scheme in October 2020. This included the application of the RGZ6 and DDO14 to the Postcode 3081 UDF main roads areas.
While the Postcode 3081 process has culminated in the adoption of different zoning and overlay provisions across the study area extent, two recent decisions in the RGZ14 and DDO14 (i.e. the same planning context as this matter) bear referencing. Both proposed two storey attached townhouse typologies (albeit one was for three dwellings and one for five).
In Planning & Design Pty Ltd v Banyule CC[2023] VCAT 443 the Tribunal considered an application to construct three, two storey dwellings at 473 Waterdale Road, Heidelberg West. In reaching its decision to refuse the application the Tribunal noted:
The proposal will provide a net increase of only two dwellings on the land and in a two-storey townhouse building form. The planning and policy context that applies to the subject land's main road location anticipates a change to higher density and more intensive built form outcomes. The strategic directions for Postcode 3081 UDF area encourages innovative medium and high density housing to encourage urban renewal of the area. A development comprising only three, two-storey dwellings is reflective of a typical multi-dwelling townhouse development that could occur in many other residential zones within the municipality outside of the RGZ6, DDO14 and Postcode 3081 UDF areas.
Ultimately, at [54] the Tribunal found:
And in CKRA Developments Pty Ltd v Banyule CC[2023] VCAT 430, which proposed the development of five, two storey dwellings the Tribunal also refused the application finding:
The incremental development of medium density housing on sites that have the potential for higher densities or consolidation with adjoining properties runs the risk of entrenching buildings that are inconsistent with the preferred built form and vision for these urban renewal areas. Incremental underdevelopment of land identified for housing change and urban renewal is inconsistent with orderly planning.
The issue then is whether four two storey dwellings in a standard attached dwelling typology achieves the strategic objectives sought or is, in fact, an underdevelopment of the land. Having considered the submissions, and had the benefit of a site inspection, I am not satisfied that the proposal is consistent with the relevant planning context.
While the applicant referred me to other nearby developments that have received approval, their existence does not justify the proposal now before me. The timing of these approvals/applications and the specific circumstances of their approval by the council do not affect the consideration of this application under the current planning scheme provisions.
While the planning scheme provides express encouragement for lot consolidation to achieve housing diversity, the council do not say that this is necessary in all instances. Instead, they say that where lot consolidation is not possible (as is asserted by the applicant) it is not then a matter of 'anything goes'. The council says that a proposal still needs to demonstrate that it is seeking to achieve the objectives of Postcode 3081 which in summary are to:
Contribute to the urban renewal of a well located and serviced area in which higher density development should be supported.
Avoid a development that would entrench buildings that are inconsistent with the preferred built form or vision for the area.
I accept that both the RGZ6 and DDO14 encourage site consolidation. But the planning scheme does not then say that absent this consolidation, any development is appropriate. The scheme still seeks urban renewal of lots at a higher density, with a scale up to six storeys.
The DDO seeks to ensure that development should be higher and of a more intense scale than its surrounding suburban context. The planning regime that applies to the land actively encourages this.
I find that a two storey development on the land at the typology proposed is an intensity that would be more likely expected in a traditional residential setting, not a RGZ with both express policy and planning control encouragement for greater height, dwelling yield and mix. Further, the land to the west of the review site enjoys strategic support for three storey development albeit it is within the General Residential Zone. The proposal before me, at two storeys, is lower than that encouraged in the lower order zone (the General Residential Zone) to the west of the site.
The proposed typology, in this instance, is not what I consider to be innovative, exemplary or responsive to its planning setting. It is a design that is often seen in more suburban settings depending on its site context. I do not consider it to be a design response that clearly distinguishes its setting from the suburban surrounds in the General Residential Zone to the west. It represents an underdevelopment of a site that enjoys explicit encouragement for high density development. I accept the view put to me by council that underdevelopment of land represents a poor planning outcome.
I find that the review site's location on a main road of the Postcode 3081 area and its close proximity to the Bell Street Mall Neighbourhood Activity Centre means that the opportunity should not be lost to achieve more significant change than that proposed in this application.
I similarly reject any assertion that a refusal of this proposal will sterilise it from redevelopment. It may be that at this time the applicant cannot make an alternative development financially viable. The planning scheme does not require a decision maker to balance an individual's financial return against the relevant planning provisions in reaching a decision about the acceptability of a proposal.
The planning scheme provisions are aspirational. The relevant policy document Postcode 3081 Urban Design Framework Plan provides for an achievement timeframe of the year 2050. Entrenching a lower yield dwelling typology on a site such as this will inevitably prevent the achievement of the policy objectives sought to be achieved for this area over the next 25 years. As the scheme provides[4], the consistent application of planning policy over time should achieve a desired outcome.
The proposal does not provide a net community benefit.