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[2003] VCAT 466
appellant. Review allowed. The Responsible Authority was directed to issue a permit for four two-storey attached dwelling units subject to the 20 conditions set out in the decision.
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The Tribunal overturned the Council's refusal of a permit for four attached homes. It considered the development generally acceptable and an improvement to the area, but required changes to reduce overlooking and imposed conditions dealing with matters such as access, drainage, flooding, landscaping and the site's prior industrial use. The decision is a fact-specific planning merits determination; the supplied text does not discuss later treatment or establish a general rule for other sites.
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Landmark Pty Ltd and Bosco Jonson Pty Ltd applied under s 77 of the Planning and Environment Act 1987 (Vic) for review of Maribyrnong City Council's refusal to grant a permit for four dwellings at 240 Williamstown Road, Yarraville ([1]). The Tribunal allowed the review and directed the Council to issue a permit, but only subject to a substantial set of conditions.
The site was described as a former industrial-use property, believed to have been used as a wrecking or dismantling yard, with the land covered by concrete and a corrugated iron shed. The surrounding area was predominantly residential and generally characterised by modest, single-storey dwellings ([2]). The decision records a discrepancy about the site area: the applicants claimed 720 square metres, while the title and relocation survey indicated 675 square metres, including the relevant part of a discontinued right of way ([2]). The Tribunal's short reasons do not explain whether or how that discrepancy affected its assessment.
The proposal comprised four two-storey attached dwellings. The submitted description included private open space for each unit and access using a right of way ([3], [7]). The refusal grounds raised a wide range of concerns, including overdevelopment, neighbourhood character, building bulk, legal access, parking and compliance with multiple Clause 55 objectives and standards ([5]). Ms Dawn Glenn appeared as the objector. The Tribunal inspected the area and the objector's rear yard on 26 February 2003 ([6]).
The Tribunal did not accept that the planning concerns justified refusal. It characterised the proposal as a way to tidy an old industrial-use site, found it generally compliant with policy and planning requirements, and considered that it fitted the local character and would improve the area ([7]–[10]). It nevertheless identified potential overlooking from south-facing balconies and upper windows. It addressed those matters through required design changes and screening provisions ([9]; [Decision, condition 1]).
The permit also contains controls beyond those points in the reasons. These cover materials, driveway appearance, levels, landscaping, access rights, a contribution, stormwater, an environmental audit certificate, flood levels, carports and waterway protection ([Decision, conditions 1–20]). The result is therefore not an unconditional approval of the plans as submitted.
The reasons are concise and turn on the Tribunal's overall planning assessment. At [8], the Member described the proposal as well designed, with north-facing private open space, and as generally complying with government policy and planning requirements. At [10], he considered it an improvement to the area and said it fitted the local character of Williamstown, as observed during the inspection. On that basis, and subject to addressing the identified amenity concerns, he found no planning-ground reason to refuse the development ([10]).
Overlooking was the only potential neighbour amenity concern expressly identified in the reasons. The Tribunal required the removal of balconies from units 2, 3 and 4. It also required specified south-facing upper-room windows to have opaque glazing below 1700 millimetres, a sill height of 1700 millimetres, or adequate screening to prevent overlooking into neighbouring backyards ([9]; [Decision, condition 1(e)–(f)]). This is a concrete example of the Tribunal treating a design concern as capable of being addressed through permit conditions rather than as a reason to refuse the proposal.
The conditions deal with several other matters. The plans must be amended to show external materials and finishes, driveway treatment, site and floor levels, and landscaping. The permit requires formal creation or establishment of legal access rights to the dwellings before development begins ([Decision, conditions 1, 11]). It also requires stormwater controls and a drainage permit, and it includes a requirement for an environmental audit certificate following removal of the concrete paving, reflecting the site's prior industrial use ([Decision, conditions 5–10]).
Melbourne Water's requirements address flood and waterway issues. They include a minimum finished floor level 300 millimetres above the applicable flood level, open carports instead of garages, minimum levels for carports and accessways, and a requirement for open-style fences within the flow path ([Decision, conditions 13–20]). These requirements form part of the permit the Tribunal directed the Council to issue.
The reasons do not provide a separate analysis of every refusal ground. In particular, they do not explain in detail the Tribunal's assessment of parking, bulk, the various Clause 55 standards, or the legal status of the right of way. Those topics appear in the refusal grounds and permit conditions, but the written reasons state the overall conclusion rather than setting out a point-by-point determination ([5], [10]–[12]). That limits how far the decision can be used to infer a general legal principle from its outcome.
The decision records an application under s 77 of the Planning and Environment Act 1987 (Vic), but it does not analyse the meaning or operation of that section beyond identifying it as the basis for the review ([1]). It also identifies the site as being in a Residential 1 zone and affected by a Development Contributions Overlay and a Special Building Overlay. It says that a permit was required for more than one dwelling and because of the Special Building Overlay ([4]).
The refusal grounds refer to numerous objectives and standards in Clause 55 of the Maribyrnong Planning Scheme ([5]). The Tribunal's reasons, however, do not set out the wording of those standards or interpret them individually. Instead, the Member gives an overall conclusion that the proposal generally complied with government policy and planning requirements ([8]). The decision therefore does not, on the supplied text, establish a detailed interpretation of a particular Clause 55 standard.
Nor does the judgment describe a change in the law before or after the decision. It does not compare earlier authorities, state that it is departing from an existing rule, or identify a new test. Its significance in the text provided is principally as a site-specific planning merits decision: concerns about overlooking were dealt with by conditions, while the broader proposal was accepted subject to extensive requirements.
The permit conditions themselves show how the approval was structured. The plans had to be amended before the use and development started, the owner had to establish access rights before development commenced, and various drainage and flood controls applied at specified stages ([Decision, conditions 1, 5–8, 11, 13–20]). Those conditions are part of the outcome, not a statement that the same conditions necessarily apply to other proposals.
At [7], the Tribunal says the proposal would “tidy an old industrial use site” and describes the use of the right of way for access to the garages. In plain English, the Tribunal viewed redevelopment as improving a site with an industrial history, while recognising that access arrangements were relevant to the proposal.
At [8], the Member says the proposal was well designed, had north-facing private open space and generally complied with policy and planning requirements. This is the central positive assessment in the reasons. It explains why the Tribunal did not regard the proposal as unacceptable in principle, although it does not provide a detailed assessment of each planning standard.
At [9], the Tribunal identifies south-facing balconies and upper windows as the only potential amenity concerns for neighbours. It then specifies the required response: remove certain balconies and screen or otherwise modify listed windows. In plain English, the Tribunal considered that the potential overlooking could be addressed by changing the approved design.
At [10], the Member says there were “no reasons on planning grounds to refuse the development” once the identified concerns could be addressed, and that the proposal fitted local character as observed on inspection. This conclusion is expressly connected to the Tribunal's assessment of the area and the permit conditions, rather than framed as an abstract rule.
Condition 11 requires the owner to “formally create or establish legal rights of access of the ROW to the proposed dwellings” before development starts. The condition makes formal access rights a prerequisite under the permit. The reasons do not explain the underlying title position or determine in detail whether an existing right of way already provided sufficient access.
Conditions 13 to 20 impose Melbourne Water requirements, including restrictions on polluted runoff, floor and access levels, open carports, and open-style fencing in the flow path. In plain English, the permit's approval was subject to design and construction measures responding to floodwater and drainage concerns.
The decision is most relevant as an example where a planning tribunal assessed a multi-dwelling proposal on a site described as formerly industrial, in a predominantly residential setting, with concerns about character, bulk, overlooking and access. It is particularly useful as a factual illustration of a tribunal finding that specified overlooking effects could be addressed through design conditions rather than requiring refusal ([2], [5], [7]–[10]).
The circumstances that shaped the outcome included the Tribunal's view that the design was generally compliant, its observation that the dwellings had north-facing private open space, and its inspection of the surrounding area and the objector's rear yard ([6], [8], [10]). The development's situation near rights of way and its location in an area affected by a Special Building Overlay also led to access and flood-related permit conditions ([4], [7]; [Decision, conditions 11, 13–20]).
The decision should not be treated as establishing that four dwellings, two-storey attached development, or a particular level of density is generally acceptable. Its reasons are brief and expressly tied to the subject land and the Tribunal's view of local character. The supplied judgment also does not give enough detail to establish how the Tribunal resolved each individual Clause 55 objection or the competing site-area figures.
The supplied judgment contains no discussion of later decisions and no citations to other cases. The materials provided therefore do not establish whether later courts or tribunals followed, distinguished, applied or otherwise treated this decision. It would not be sound to infer a later precedential history from this text alone.
Within the decision itself, the Tribunal refers to s 77 of the Planning and Environment Act 1987 (Vic) and the relevant planning controls, but does not cite or discuss prior judicial authorities ([1], [4]–[5]). Its reasoning is presented as the Member's assessment of the proposal and the site, ending in a direction to grant a permit subject to conditions ([10]–[12]).
Several matters are not resolved in detail by the written reasons. First, the decision does not explain how the Tribunal assessed each of the Clause 55 standards listed in the refusal grounds. It gives an overall finding of general compliance, but no separate reasoning for each standard ([5], [8]).
Second, the reasons do not analyse the legal status of the right of way. The appearances record that counsel for the applicants reserved the right-of-access issue, and condition 11 requires formal access rights to be created or established ([Appearances]; [Decision, condition 11]). The judgment does not explain whether there was an existing easement, what legal instrument was required, or how the Tribunal addressed any dispute about access.
Third, while the conditions include substantial stormwater and flood requirements, the reasons do not explain the evidence or technical analysis underlying them. The conditions require drainage computations, controls on runoff, minimum levels and other measures, but the short reasons do not discuss the engineering material or the basis for each figure ([Decision, conditions 5–8, 13–20]).
Fourth, the decision notes competing figures for the site area but does not explain whether the discrepancy affected site coverage, density or another planning consideration ([2]). The description of unit 2 in paragraph 3 also contains an apparent typographical error, referring to “32 bedrooms”; the decision elsewhere describes that unit as having three bedrooms in the reproduced proposal information. The text should not be used to resolve that inconsistency without checking the underlying plans.
Finally, the decision does not state whether any appeal, later review or subsequent treatment occurred. It supports a narrow account of this Tribunal's 2003 decision, not a conclusion about its present precedential status.
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The request to review the decision of the Responsible Authority to refuse to grant a permit for four (4) dwelling units is allowed. The Responsible Authority is directed to issue a permit with the following conditions:
1. Before the use and 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 four copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:
a) A schedule of all external materials and finishes shall be submitted. The schedule shall show the materials, colour and finish of all external walls, roof, fascias, window frames, glazing types, doors, fencing and paving (including car-park surfacing), outbuildings and structures. All external walls to be clad weatherboard or simulated weatherboard material.
b) The driveway coloured and patterned in order to reduce its visual impact (colour code and pattern type to be submitted).
c) Floor levels and site levels to AHD (Australian Height Datum) or TBM (temporary bench mark) clearly annotated on the plan.
d) A landscape plan showing proposed species to be planted in the total open space areas.
e) Balconies shall be removed from units 2, 3 and 4.
f) South facing upper room windows in the following rooms shall be fixed opaque glazed below 1700mm, a sill height of 1700mm or adequately screened to prevent overlooking into neighbouring backyards
2. Prior to the issue of the Building Permit, the owner of the land must pay the Maribyrnong City Council a cash contribution towards Community Infrastructure Plan 6 consisting of $450 ($450 per net new dwelling).
3. All pipes, fixtures, fittings and vents servicing the building or buildings on the site shall be concealed in service ducts.
4. All vehicle crossings shall be located, designed and constructed to the satisfaction of the Council's Asset and Infrastructure Branch.
5. The development is required to restrict its stormwater runoff discharge or upgrade outfall drainage to the requirements of Council.
6. Stormwater drainage computations must be submitted to the satisfaction of Council showing the affects on the Council drainage system and on properties downhill of this one in the case of a severe storm, prior to the commencement of the building work.
7. The building shall be provided with suitable drains of an impervious type which shall be laid to a self-cleaning gradient with suitable provision for silt traps where necessary, and all drains shall be maintained in good order and condition and shall discharge to an approved outlet.
8. Stormwater run-off from the site must not cause any adverse impact to the public, any adjoining site or Council asset. Prior to development of the site a stormwater discharge permit is required from the Manager of Assets and Infrastructure or his representative. A fee is payable upon application for this permit: -
9. Prior to occupancy the landscaping as indicated on the endorsed plan forming part of the permit must be completed and then maintained to the satisfaction of the Responsible Authority. Areas dedicated for landscaping must not be used for any other purposes.
10. Due to the prior industrial use, an environmental audit certificate shall be provided following the removal of all concrete paving.
11. Before the development commences, the owner is required to formally create or establish legal rights of access of the ROW to the proposed dwellings hereby approved, to the satisfaction of the Responsible Authority.
12. This permit will expire if one of the following circumstances applies:
* the development is not completed within two 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.
13. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
14. Finished Floor levels of dwellings must be a minimum of 300mm above the applicable flood level.
15. All garages must be replaced by open carports.
16. Finished floor levels of the carports must be no lower than 12.1 metres to Australian Height Datum (AHD).
17. Finished surface levels of any vehicular and/or pedestrian access (driveway) must be no lower than 12.1 metres to the Australian Height Datum (AHD).
18. Prior to the commencement of works, amended plans must be submitted to Melbourne Water. The mended plans must show the conditions 15, 16 and 17 above.
19. Separate application, direct to Melbourne Water, must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses.
Prior to accepting an application, evidence must be provided demonstrating that Council considers that it is not feasible to connect to the local drainage system.
20. Any new fences within the flow must be of an open style of construction to allow for the passage of floodwaters/overland flow.
Mr James Livingston, Planning Consultant represented the Responsible Authority.
Mr John McCaffrey represented the Permit Applicant and had Mr D. Flynn of Counsel with him to reserve the right of access issue off an existing ROW.
1. This application is brought under Section 77 of the Planning and Environment Act 1987 to review a decision of the Responsible Authority to refuse to grant a permit for (4) dwellings on a lot.
2. The subject land as described by Mr Livingston is:
"The subject site is located on the west side of Williamstown Rd, approximately 25 metres north of Cecil St. Land immediately to the south of the site constitutes a partly discontinued Right of way, also owned by the subject site. Whilst the applicant claims that the site is 720sqm in area, the title and relocation survey submitted by the applicant indicate a site area of 675sqm including the relevant part of the discontinued Right of Way. The site abuts another Right of Way directly on its southern boundary.
The land is relatively flat completely capped (covered by concrete) and has a corrugated iron shed in the north west corner of the site and along the frontage of the site. Whilst the previous use of the site is unclear it is believed that the site was previously a wrecking/dismantling yard. The surrounding area is predominantly residential in nature and is by and large single storey in character of modest size."
3. The proposal also from Mr Livingston's submission is:
"The proposal involves the construction of four double storey dwelling. The key design elements include:
* 2.2 metre to 2.8 metres setback to the Right of Way;
* All dwellings attached at ground floor and minimum separation at first floor with unit 2 and 3 being attached at first floor.
* Ground Floor - Kitchen, meals, living, laundry, storage and a single car garage;
* First Floor - 2 bedrooms, sitting room and amenities;
* Ground Floor - Kitchen meals, living, laundry, storage and a two car garage;
* First Floor -32 bedrooms, sitting room and amenities;
* Ground Floor - Kitchen, meals, living, laundry, storage and a two car garage;
* First Floor - 3 bedrooms, sitting room and amenities;
* Ground Floor - Kitchen, meals, living, laundry, storage and a single car garage;
* First Floor - 2 bedrooms, sitting room and amenities;
4. The subject land and surrounding land is zoned Residential 1 under the Maribyrnong Planning Scheme and is affected by a Development Contributions Overlay and a Special Building Overlay. A permit is required for more than one dwelling on the land and because of the Special Building Overlay.
5. The grounds of refusal and reasons for this request are:
1. The proposed development is an overdevelopment of the site.
2. The proposed development is contrary to the character of the area.
3. The proposed development presents unacceptable amounts of building bulk to adjacent properties and the street.
4. The proposed development does not have a legal right of vehicular access over property it intends to use for such purposes.
5. The proposed development provides inadequate carparking.
6. The proposed development does not satisfy the objectives of Clause 55.02-1 and Standard B1.
7 The proposed development does not satisfy the objectives of Clause 55.02-2 and Standard B2.
8. The proposed development does not satisfy the objectives of Clause 55.02-5 and Standard B5.
9. The proposed development does not satisfy the objectives of Clause 55.03-1 and Standard B6.
10. The proposed development does not satisfy the objectives of Clause 55.03-2 and Standard B7.
11. The proposed development does not satisfy the objectives of Clause 55.03-7 and Standard B12.
12. The proposed development does not satisfy the objectives of Clause 55.03-9 and Standard B14.
13. The proposed development does not satisfy the objectives of Clause 55.03-10 and Standard B15.
14. The proposed development does not satisfy the objectives of Clause 55.03-11 and Standard B16.
15. The proposed development does not satisfy the objectives of Clause 55.04-6 and Standard B22.
16. The proposed development does not satisfy the objectives of Clause 55.04-8 and Standard B24.
17. The proposed development does not satisfy the objectives of Clause 55.05-1 and Standard B25.
18. The proposed development does not satisfy the objectives of Clause 55.05-2 and Standard B26.
19. The proposed development does not satisfy the objectives of Clause 55.05-5 and Standard B29.
20. The proposed development does not satisfy the objectives of Clause 55.06-1 and Standard B31.
1. The proposed development is not an overdevelopment of the site,
2. The proposed development is not contrary to the character of the area.
3. The proposed development will not impact adversely on adjacent properties or on the street.
4. The proposed access to the development is satisfactory.
5. The development provides adequate parking for the dwellings proposed.
6. The development satisfies the requirements of Clause 55 of the Maribyrnong Planning Scheme.
6. The Tribunal considered it necessary to inspect the area and the Objector's property rear yard. The inspection occurred on the evening of the 26th February 2003.
7. The proposal is to tidy an old industrial use site and develop four attached dwelling units. The subject land has a ROW along its southern and western boundaries and use is made of the southern section to access the two single garages for the two bedroom units and two double garages for the three bedroom units.
8. The proposal has been a well designed with north facing private open space and generally complies with government policy and all planning requirements.
9. The only potential amenity concerns for neighbours are the south facing balconies and upper windows. The Tribunal will require the removal of balconies from units 2, 3 and 4 and the screening of the following upper room windows -
10. The proposal will be an improvement to the area and apart from the above concerns that can be addressed with conditions, there are no reasons on planning grounds to refuse the development. It fits the local character of Williamstown as noted on the inspection.
11. Draft conditions were discussed at the conclusion of the hearing and those considered appropriate and necessary are included in the decision above.
12. The Responsible Authority will be directed to issue a permit for the four(4) two storey attached units.
Landmark Pty Ltd & Anor
Maribyrnong CC [2003] VCAT 466
Review allowed. The Responsible Authority was directed to issue a permit for four two-storey attached dwelling units subject to the 20 conditions set out in the decision.