appellant. Council’s decision was set aside. Leave was given to substitute the plans filed with the Tribunal, and a permit was granted and directed to be issued for construction of three dwellings and...
Key principles
On the facts found, the proposed three-dwelling development was suitable for the site and its planning context. The Tribunal considered the site’s location on a main road, access...
The proposed second dwelling’s visibility from 20 Doncaster Road did not, by itself, make the development unacceptable. The Tribunal found that the dwelling was not visually...
The street tree affected by relocation of the vehicle crossing was to be relocated or replaced at least 2 metres from the new crossover, as required by the permit conditions...
Issues before the court
Whether a permit should be granted for three dwellings on the subject land, including a two-storey dwelling near the adjoining property at 20...
Whether dwelling 2 would cause unacceptable effects on the amenity and privacy of 20 Doncaster Road.
How the proposed crossover affected the existing street tree and access arrangements.
Plain English Summary
The Tribunal allowed the review and granted a permit for three homes at 18 Doncaster Road. It considered the area and the site suitable for multi-dwelling development, and found that the proposed central dwelling would not cause unacceptable effects on the neighbour. The permit nevertheless required changes to plans, windows and screening, as well as conditions about landscaping, the street tree, drainage, parking and vehicle access.
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Deep Dive
2,124 words · generated 01/10/2026
What happened
In Lee v Boroondara CC [2008] VCAT 419, H M Lee sought review of Boroondara City Council’s refusal of an application to develop 18 Doncaster Road, Balwyn North. The judgment identifies the review as one under section 77 of the Planning and Environment Act 1987 (footnote [1]). The application was PP06/01105, and the Tribunal heard the matter on 7 March 2008.
Cited legislation
1 cited instrument linked from this judgment.
The proposed development involved demolishing the existing single-storey dwelling and constructing three dwellings: two two-storey homes and a single-storey dwelling at the rear of the land (Reasons, “What is being considered?”, para 3). The site had an area of 1,014.7 square metres and frontage of 18.52 metres. It was on the southern side of Doncaster Road, a busy road, with single dwellings to either side and units to the rear (Reasons, “The site and locality”, paras 1–4).
Although Council had refused the application on six grounds, at the hearing it focussed on the effect of dwelling 2, the central two-storey dwelling, on the adjoining property at 20 Doncaster Road (Reasons, “What is being considered?”, para 1; “Consideration of Issues”, para 1). The neighbour, Mr Bonomo, was concerned about privacy, amenity and the streetscape. He also referred to the effect of other two-storey development nearby and the prospect of feeling “hemmed in” (Reasons, “What is being considered?”, para 2; “Consideration of Issues”, para 3).
The Tribunal set aside the Council’s decision and granted a permit, subject to conditions. It also allowed the applicant to substitute plans filed with the Tribunal. Those plans were to be further amended before development began, including changes to specified first-floor windows, screening and the street tree near the proposed crossover (Order, conditions 1–4).
The permit was not unconditional. Among other things, its conditions required landscaping plans and implementation, drainage works, construction of parking areas and access, a two-way crossover at least 6.4 metres wide at the property boundary, and forward entry and exit for vehicles using parking spaces (Order, conditions 7–20). It also set commencement and completion time limits of two and four years respectively, subject to the stated extension provision (Order, condition 22).
Why the court decided this way
The Tribunal’s reasoning was specific to the site and design before it. It recorded that the land was in the Residential 1 zone and that a permit was required for two or more dwellings. It also stated that the development had to meet Clause 55 of the Boroondara Planning Scheme (Reasons, “Planning provisions, inspection and documents”, para 1; footnote [2]).
The planning context supported residential redevelopment. The Tribunal described the location as well serviced and near shops, public transport and schools, and noted that the surrounding area included both single dwellings and multi-dwelling developments. Its assessment was that medium-density development was appropriate on the site, including a two-storey building to the street (Reasons, “Planning provisions, inspection and documents”, paras 4–8). The Tribunal’s framing was that the question was “not if the site can be redeveloped but with what form of development” (para 8).
The central question was the effect of dwelling 2 on 20 Doncaster Road. The Tribunal accepted that the dwelling would be visible from the neighbour’s property. It did not treat visibility, by itself, as decisive. It found that the dwelling was not visually bulky, that its first floor was recessed, and that its materials and colours provided visual interest. It also considered the minimum 4.6-metre setback from the eastern boundary appropriate (Reasons, “Consideration of Issues”, para 4).
The Tribunal addressed the privacy concern through the design of windows, rather than by requiring the dwelling to be removed or reduced. It considered it possible to relocate the retreat window to the north elevation, the bathroom window to the south elevation, and the northern-most bedroom 2 window to the north elevation. For replacement retreat and bathroom windows, it contemplated high sills at least 1.7 metres high. It also required external screening devices on upper-level windows on the east and west elevations to have a maximum transparency of 25% (Reasons, “Consideration of Issues”, para 4; Order, condition 4(b)–(c)).
The Tribunal separately found no overshadowing of the neighbour’s private open space. It also considered that the paved area raised in submissions was not the only private open space available, noting the location of an outdoor table further north and protection from an existing garage (Reasons, “Consideration of Issues”, para 4). Its overall finding was that the impact of dwelling 2 would be minimal and that there would be no overlooking or overshadowing (para 5).
Landscaping and the street tree were dealt with through conditions. The Tribunal considered the proposed landscaping appropriate, including canopy trees in the front setback, open-space areas and along the eastern boundary. Because moving the crossover would affect an existing street tree, the Tribunal required that tree to be relocated or replaced at least 2 metres from the new crossover (Reasons, “Landscaping and Impact on street tree”, paras 1–2; Order, condition 4(a)).
Before and after state of the law
The judgment applies the planning provisions and policies it identifies; it does not announce a new statutory test or state that it is altering existing doctrine. It identifies the Residential 1 zone, the permit requirement for two or more dwellings and the applicability of Clause 55 (Reasons, “Planning provisions, inspection and documents”, para 1). It also records relevant state and local planning policies, including the Metropolitan Strategy, settlement, medium-density housing and neighbourhood-character policies (para 3 and footnote [3]).
Accordingly, the decision’s contribution is best read as an illustration of how the Tribunal assessed this particular proposal under the scheme provisions and policies before it. It treated the site’s location, surrounding housing forms, building design, setbacks, landscaping and effects on adjoining amenity as relevant matters. It found the development acceptable in context while imposing detailed conditions to address aspects of the design and its implementation.
The text does not say that visibility from neighbouring properties is always acceptable, that a particular setback will always be sufficient, or that window changes of this kind will resolve privacy concerns in other cases. Those matters formed part of a fact-specific assessment. Nor does the supplied judgment identify any later change in law resulting from the decision. It is therefore not possible, on this source alone, to describe a general “before and after” change in the law or to assess the decision’s later precedential influence.
The order is practically significant as an example of a permit being granted with amended plans and conditions after review of a refusal. The Tribunal did not simply approve the proposal as initially lodged: the approved plans had to incorporate the specified changes, and further conditions controlled landscaping, drainage, parking, access, maintenance and timing (Order, conditions 1–22).
Key passages with plain-English translation
The Tribunal stated: “The question is not if the site can be redeveloped but with what form of development” (Reasons, “Planning provisions, inspection and documents”, para 8). In plain English, the Tribunal had already concluded that redevelopment was suitable in principle. Its focus was whether this particular design and arrangement was acceptable.
The Tribunal said: “The proposed development will be visible to adjoining dwellings but this is acceptable in this location and context” (Reasons, “Conclusion”, para 1). This does not mean that visibility is irrelevant in every planning assessment. Here, the Tribunal considered visibility together with the building’s bulk, setbacks, design, landscaping and amenity effects.
In discussing the neighbour’s concerns, the Tribunal found that dwelling 2 would be visible but “is not visually bulky to the adjoining properties” and was set at least 4.6 metres from the eastern boundary (Reasons, “Consideration of Issues”, para 4). The plain-English point is that the Tribunal distinguished seeing a building from finding its presence or scale unacceptable.
The Tribunal also concluded that there were no amenity impacts “such as overlooking, overshadowing or loss of privacy to adjoining properties” (Reasons, “Conclusion”, para 1). That conclusion should be read alongside the required plan amendments: relocation of three specified windows or replacement with high-sill windows, and limits on the transparency of upper-level screening devices (Order, condition 4(b)–(c)). The outcome depended on the proposal being altered and controlled in the way set out in the permit.
On the street tree, the Tribunal agreed with a condition requiring relocation or replacement at least 2 metres from the new crossover (Reasons, “Landscaping and Impact on street tree”, para 2; Order, condition 4(a)). In practical terms, approval of the access change was linked to addressing the tree’s location.
What fact patterns trigger this precedent
The decision is most relevant as an example where a residential development application proposes multiple dwellings in a location the Tribunal considers suitable for increased housing, but an adjoining owner raises concerns about the form and amenity effects of a particular dwelling. The features considered here included a main-road location, nearby services and public transport, varied housing forms in the area, a two-storey dwelling near a side boundary, and an existing neighbouring home with private open space.
It may be useful to compare a later planning dispute where the key question is not whether residential redevelopment is appropriate in principle, but whether the proposed scale, layout and design respond adequately to the site and its neighbours. Relevant comparison points drawn from this judgment include the visibility and apparent bulk of the building, boundary setbacks, the position and treatment of upper-level windows, landscaping, overshadowing, private open space and vehicle access.
The case should not be treated as establishing that two-storey development beside a single dwelling is necessarily acceptable. The Tribunal relied on its findings about the actual setbacks, articulation, lack of overshadowing, proposed window changes and landscaping in this case (Reasons, “Consideration of Issues”, paras 4–5). A materially different design, site layout or relationship between properties may raise different issues.
The decision also illustrates a fact pattern involving a crossover relocation that affects a street tree. The order tied the development approval to a requirement for the tree to be relocated or replaced at least 2 metres from the crossover and imposed additional construction and access conditions (Order, conditions 4(a), 15–20).
How later courts have treated it
The supplied judgment contains no discussion of later decisions, and the material provided does not include subsequent cases. It is therefore not possible to say whether later courts or tribunals have followed, applied, distinguished or otherwise treated Lee v Boroondara CC.
The judgment itself does not cite other cases. Its stated sources are planning provisions and policies, including section 77 of the Planning and Environment Act 1987, Clause 32.01 and Clause 55 of the Boroondara Planning Scheme, and the policy clauses listed in footnote [3]. No case-law relationship can be extracted from the text provided.
For research purposes, this means the decision’s later status remains unverified on the available material. The decision can be described as a VCAT application of the planning framework to its own facts, but any claim about its treatment in subsequent decisions would require access to those decisions.
Still-open questions
The decision provides a short, site-specific set of reasons rather than a comprehensive discussion of every planning-policy consideration. It notes that Council initially refused the proposal on six grounds but focussed at the hearing on dwelling 2’s effect on the neighbour (Reasons, “What is being considered?”, para 1; “Consideration of Issues”, para 1). The text does not set out the six grounds in full, so the basis of each original refusal ground cannot be reconstructed from this judgment.
The reasons refer to Clause 55 but do not set out its individual standards or explain in detail how the proposal addressed each one. The judgment says that a high level of compliance was accepted by Council’s planning consultant and the objector, but the excerpt does not provide a standard-by-standard analysis (Reasons, “Consideration of Issues”, para 2). The decision therefore does not supply a detailed checklist for assessing another application under that clause.
The Tribunal’s privacy findings also depend on conditions that modify the windows and require screening. The reasons explain why the Tribunal considered those changes possible and appropriate, but do not examine alternative screening designs or define how the maximum 25% transparency would be measured (Reasons, “Consideration of Issues”, para 4; Order, condition 4(c)). The order places the required amendments within the permit process, with plans to be submitted and approved before development starts (Order, condition 4).
Finally, the supplied material does not establish how the permit was implemented, whether any extensions were requested, or how later decisions have treated this case. Those matters cannot be inferred from the reasons or order reproduced here.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Judgment (19 paragraphs)
[1]
Lee v Boroondara CC [2008] VCAT 419 (14 March 2008)
[2]
Section 77 of the Planning & Environment Act 1987, Boroondara Planning Scheme, Residential 1 zone, Multi dwelling development.
Leave is given to the Applicant to substitute for the permit application plans, the following plans filed with the Tribunal:
Prepared by Site Matters
Dated: Amended February 2008. Letter dated 13 February 2008.
Drawing numbers: Sheets 1 - 4 and Sheets 1-3.
[5]
The decision of the Responsible Authority is set aside.
In permit application PP06/01105 a permit is granted and directed to be issued for the Construction of three (3) dwellings on a lot and creation and alteration of access to a Road Zone, Category 1 at 18 Doncaster Road Balwyn North generally in accordance with the endorsed plans and subject to the following conditions:
[6]
Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the substituted plans tabled at the hearing of Application for review no. P2865/2007, but modified to show:
(a) The re-location or replacement of the street tree which is to be located a minimum 2m from the proposed new crossover.
(b) Dwelling 2 first floor windows amended as follows:
(i) Retreat window - relocated to the north elevation. It can be replaced with a high sill window (minimum 1.7 metres sill height).
(ii) Bathroom window - relocated to the south elevation. It can be replaced with a high sill window (minimum 1.7 metres sill height).
(iii) Bed 2 northern most window - relocated to the north elevation.
(c) All external screening devices proposed on the upper level windows on the east and west elevations to have a maximum transparency of 25%.
(d) A landscape plan generally in accordance with condition 4.
The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.
Buildings, engineering works and fences must be maintained to the satisfaction of the Responsible Authority.
A landscape 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 form part of this permit. The plan must be drawn to scale with dimension and three copies must be provided.
(a) A survey (including botanical names) of all existing vegetation to be retained and /or removed
(b) Details of surface finishes of pathways and driveways
(c) 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
[7]
The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.
[8]
Natasha Placencio, Town Planning Consultant, Site Matters
[9]
Mr Murray Ness, Town Planning Consultant, Hellier McGarland - Cityplan
[10]
This is a dispute between H M Lee and the City of Boroondara Council[1] regarding an application to develop the site at 18 Doncaster Road, Balwyn North for three dwellings. Council refused the application on six grounds but at the hearing focussed only on one ground. That is the impact of the proposed dwelling 2 on the adjoining property at 20 Doncaster Road, Balwyn North.
Mr Bonomo the objector at 20 Doncaster Road, raised concerns regarding the impact of the development on the privacy and amenity of his dwelling and the impact of the development on the Doncaster Road streetscape.
The proposal involves the demolition of the existing dwelling and the development of two two storey dwellings and a single storey dwelling at the rear of the site. The two storey dwellings provide three bedrooms open plan living areas and a double garage. The single storey dwelling at the rear accommodates two bedrooms, a single car garage and open plan living areas. The most contentious dwelling is dwelling no. 2 located in the centre of the site. It is proposed to relocate the vehicle crossing from the west to the east boundary.
Following the hearing, I inspected the subject site and surrounds.
[11]
The subject site is located on the southern side of Doncaster Road, Balwyn North. The site has a frontage of 18.52 metres, a depth of 59.46 metres and a total site area of 1,014.7 square metres.
The site currently accommodates a single storey detached dwelling, which is set back 11 metres from the street frontage. An existing crossover is located on the western side of the site.
The site is adjoined by single dwellings on both sides. Units adjoin the site to the rear. There are a number of unit developments evident in the surrounding area. No 22 Doncaster Road is currently being developed with two additional two storey dwellings. Multi unit development also exits in Maud Street to the rear of the site.
Development proposed is a combination of single and two storeys.
The site is located on busy Doncaster Road. Further west to the site is a medical centre and group of shops.
[12]
The subject site is zoned Residential 1[2]. A permit is required to construct two or more dwellings on a lot. A development must meet the requirements of Clause 55.
No overlays apply to the site.
Council highlighted a number of policies that are in some way relevant to the consideration of the proposed application[3]. Council submitted that planning policy encourages urban consolidation in appropriate locations to meet the needs of the community and in a manner that respects the neighbourhood character and does not cause unreasonable loss of amenity to residents.
The Neighbourhood Character Policy at clause 22.07 identifies the site within character area no.19. The character statement sets out a range of character elements that contribute to the area and ranks them in levels of importance. The very important elements include subdivision pattern and access (there is a wide choice of community facilities and open space in the area). Mr Ness highlighted the elements building style and building scale as ranking as quite important.
The character statement for area 19 also identifies that housing type in the area comprises of single family homes and multi-dwelling developments.
Council submitted that they accept that clause 12.01 encourages urban consolidation in appropriate locations but also seeks to ensure new development responds to its landscape, value built form and cultural context. Mr Ness further submitted that the proposal fails to positively respond to the surrounding residential built form context. It would present an excessive and overly dominant building form and scale within streetscape and from adjoining properties.
From a policy platform, this site is appropriate for medium density housing. It is on a main road, is close to shops, public transport, schools and series. A two storey development to the street is also appropriate. The character of the area is defined by both single and two storey developments. The two storey houses on the north side of Doncaster Road sit proud to the street.
The proposed development satisfies state and local planning policies. It is an area well services and within a context of varied housing styles and types. The question is not if the site can be redeveloped but with what form of development. The concern of the development is the impact of the proposed dwelling 2 to the adjoining property to the east.
[13]
It was agreed at the hearing that despite a Council Refusal of six grounds, the primary concern is the impact of the proposed dwelling 2 to the adjoining property to the east.
Mr Ness and Mr Bonomo submitted that the proposal had a high compliance with clause 55. He however identified the concerns with the proposal as follows:
The main secluded private open space for the dwelling exists in a paved area between the garage and the back of the dwelling. This includes a rear courtyard area at the rear door of the dwelling. The two storey dwelling 2 is positioned in a location on the subject site of maximum impact to this area of private open space, and with maximum impact to the rear of the dwelling in terms of presenting building mass and bulk.
The overlooking objective may have been met but there is a perception of overlooking from the first floor of dwelling 2 to no 20 Doncaster Road.
Insufficient areas for landscaping have been set aside throughout the site.
Mr Bonomo raised concern that due to the construction of two storey dwellings at no 22 Doncaster Road (to his east), he will feel 'hemmed in' and experience a loss of privacy.
I find the proposed dwelling 2 acceptable for the following reasons:
The proposed dwelling 2 will be visible from no. 20 Doncaster Road. However, visibility in itself is not the concern. The dwelling is not visually bulky to the adjoining properties. The first floor has been recessed and a combination of building materials and colours has been used to create interest in the building.
The dwelling is two storeys but is set a minimum of 4.6 metres from the east boundary. The setbacks are appropriate.
Boundary landscaping is proposed. It is possible to grow tall evergreen trees and Council should ensure this is the outcome.
The building is well articulated presenting an interesting façade.
It is possible to relocate the retreat window from the east elevation to the north elevation. It is also possible to relocate the bathroom window to the south elevation and one of the bed 2 windows from the east elevation to the north elevation. In terms of overlooking and the perception of overlooking, there is one bed 2 east facing window that can be appropriately screened. To ensure that the east elevation does not result in a bland elevation, it is possible to replace the retreat and bathroom windows with a 1.7 metre high sill window.
[14]
Concern was raised by both parties that landscaping is inappropriate. The landscaping proposed provides canopy trees in the front setback, the open space areas of dwellings 2 and 3 and along the eastern boundary. I find the level of landscaping proposed appropriate for the location and context.
The relocation of the vehicle crossing on Doncaster Road will affect the existing street tree. I agree with the Council's proposed condition that the street tree located within close proximity to the proposed crossing should be re-located or replaced a minimum 2 metres from the proposed new crossover.
[15]
This site is suitable for multi unit development. It is located on a main road with access to services, shops, schools and public transport. There is a range of multi dwelling developments within the surrounding area. The proposed development will be visible to adjoining dwellings but this is acceptable in this location and context. There are also no amenity impacts such as overlooking, overshadowing or loss of privacy to adjoining properties.
[16]
Having regard to the submissions, I will order that a permit be issued subject to conditions.
[17]
[1] Section 77 of the Planning & Environment Act 1987
[18]
[2] Clause 32.01 of the Boroondara Planning Scheme.
[19]
[3] State Planning Policy Framework included Clauses 12 Metropolitan Strategy, 14 Settlement, 15.12 Energy Efficiency, 16.02 Medium Density Housing. Local Planning Policy Framework included Clauses 21.05 Urban Character, 21.07 Residential Land Use and 22.07 Neighbourhood Character Policy.
Parties
Applicant/Plaintiff:
Lee
Respondent/Defendant:
Boroondara CC [2008] VCAT 419
Legislation Cited (1)
Environment Act 1987
AI Analysis
Outcomeappellant
Disposition:
Council’s decision was set aside. Leave was given to substitute the plans filed with the Tribunal, and a permit was granted and directed to be issued for construction of three dwellings and creation and alteration of access to a Road Zone, Category 1, subject to the stated conditions.
(d) Landscaping and planting within all open areas of the site
(e) Planting required by any other Condition of this permit;
Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.
All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.
The replacement or relocation of the existing street tree is to be carried out and completed in consultation with Council's Parks and Gardens Department to the satisfaction of the Responsible Authority and all costs are to be borne by the permit applicant.
The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the occupation of the building.
Stormwater drains must be connected to a legal point of discharge approved by the Responsible Authority. Drainage connections within a road reserve must be to Council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.
Before the use starts or any building is occupied, area/s set aside for car parking, access lanes and driveways shown on the endorsed plans must be constructed and formed to such levels and properly drained so that they can be used in accordance with the endorsed plans, to the satisfaction of the Responsible Authority.
External driveways and parking areas must be constructed with dark coloured concrete or bitumen, coloured patterned concrete, interlocking paving blocks or brick paving to the satisfaction of the Responsible Authority.
Any new vehicle crossover or modification to an existing vehicle crossover must be constructed in accordance with Council's standard details. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.
Prior to the completion of the development, the developer must remove all disused or redundant vehicle crossovers and re-instate kerb and channeling and the affected nature strip, to the satisfaction of the Responsible Authority.
A two-way sealed vehicular crossover must be constructed at least 6.4 metres wide, measures at the property boundary to the satisfaction of the Responsible Authority.
A sealed driveway must be constructed within the site, and be 6.4 metres wide to allow two-way traffic flow, to the satisfaction of the Responsible Authority.
The edges of the vehicular crossover must be angled at 60 degrees to the road reserve boundary, to improve entry and exit conditions, to the satisfaction of the Responsible Authority.
All car parking spaces shall be designed to allow all vehicles to drive forwards when both entering and leaving the property.
The applicant shall pay the full costs of all roadworks, service relocations, signage and other costs associated with these works.
This Permit will expire if:
(a) The development does not start within two (2) years of the issue date of this Permit; or
(b) The development is not completed within four (4) years of the issue date of this Permit.
There is no overshadowing to the private open space of 20 Doncaster Road.
The paved area of private open space that has been highlighted is not the only area of private open space. The outdoor table is located further north where there is more protection from an existing garage.
I am persuaded by the submission of Ms Placencio that the proposed dwelling has responded to the features of the site. It has located the single storey dwelling at the rear of the site while ensuring minimal impact to adjoining residential properties. The impact of dwelling 2 to the adjoining property to the east will be minimal. No. 18 Doncaster Road will see the dwelling but there is no overlooking or overshadowing. The setbacks are appropriate and landscaping along the boundary is proposed.