Love v Boroondara CC [2026] VCAT 3 (6 January 2026)

1. The applicants have referred to the current suite of housing reforms which are being introduced into the scheme by multiple scheme amendments. This includes rezoning of the subject land and environs to the Housing Choice and Transport Zone, Schedule 2.
2. The applicants submit that this will 'invariably influence the future built form character of Derby Street and the broader catchment precinct'. Due to the strategic context and the express purposes of housing policy and the Housing Choice and Transport Zone, the applicants submit it can be expected there will be a discernible increase in the scale and massing of future development in the order of three to four storeys - this is a policy shift that they say informs the 'context' of the subject land particularly non-contributory places and contributory places that are of a size to accommodate infill development to the side/rear in a manner that supports positive housing and heritage outcomes. The applicants continue in their submission to comment that achievement of state-led housing policy will lend support for a heightened 'tolerance; for new infill development within a heritage streetscape to intensify and take on a more prominent appearance'.
3. I have considered these submissions and note that there is already an amount of contemporary two storey dwelling development in Derby Street, notably at the southern end toward Riversdale Road.
4. The primary issues I have with this permit application focus on the impact on the host building itself, through the extent of demolition of original contributory fabric and the proposed buildings and works. Two storey additions to this contributory building are accepted in principle. The negative and unacceptable impacts result from the specific design approach adopted - one which has not sufficiently responded to the heritage fabric and values in HO159, in my assessment. This is not a situation where I consider a policy shift relied on by the applicant justifies acceptance of the impacts on the host building and heritage place.
5. The approved development at No. 12 Derby Street has been cited by the applicants. There, additions occurred with visible and valued original fabric retained. My decision in Thomas v Boroondara CC [2019] VCAT 1427 ('Thomas') took account of the specific site conditions in that case, including the 'generous' southern setback and shallower front setback relative to the adjacent buildings to the north and south.[18] The approved and now-constructed design positioned and separated two storey additions behind a retained form.
6. My decision in the current proceeding is based on the specific circumstances of the subject land and its context. The issues in this case are directly related to the extent of demolition for which approval has been sought and then the siting and massing of new built form and works.

1. I have referred to net community benefit earlier. I note my comments on this matter in Thomas[19] including the decision of the Court of Appeal in Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27.
2. The proposed demolition and removal of original intact fabric, and the proposed development and works, are not acceptable when assessed under clause 43.01 and relevant policy. Neutral and positive outcomes with respect to the removal of non-original fabric, and the broader policy context to which the applicants refer, do not outweigh the negative heritage outcomes that arise in this permit application.
3. The parties addressed me as to whether a permit being granted, with conditions directing any changes, could be a way forward. I am not persuaded permit conditions can be crafted to respond to my findings. It is not my role to redesign the proposal, which is what I consider is needed to respond to the reasons why I have determined the current permit application is not acceptable. Moreover, there would be expected to be impacts on the building envelope, external design and internal layout of the dwelling that are unknown, uncertain and potentially unacceptable to the permit applicants.