Luxor Property Group Pty Ltd v Port Phillip CC [2026] VCAT 38 (21 January 2026)

1. He says there is little point in having a DDO and then ignoring it. He referred us to the Tribunal decision in Athedim (Vic) Pty Ltd v Moonee Valley CC (No 2) [2010] VCAT 1091 where the Tribunal stated:
   1. The Tribunal must give effect to the DDO. Notwithstanding the fact that the preferred height within the subject DDO is a discretionary limit, the Tribunal must avoid decisions which in effect render the specification of a preferred height meaningless. I agree with Mr Holdsworth, there needs to be special circumstances which warrant a departure from the preferred maximum specified by the DDO.
2. We note the arguments that the increase in height is small in the overall scale of building height involved and that the adverse effects will likely be minor. However, we are also cognisant of what the planning scheme says under Clause 71.02-2, that 'The consistent application of planning policy over time should achieve a desired outcome.'
3. The evidence of Mr Blades is that the application of Condition 1b) affects more than height but also built form, scale, transition, neighbouring residential amenity, architectural proportions and heritage values. We accept this evidence. Although Condition 1b) relates to height and the removal of the fifth floor, its effect is much broader and requires a more nuanced consideration, not merely because of the assessment against DDO21, but also under the HO7.
4. Mr Bromhead's evidence is that amenity considerations can be addressed through setbacks of upper floor levels. In this regard, he says the proposed fifth floor (sixth level) is setback from both Chapel Street (from 2.574 metres to the balcony to 5.124 metres to the living room frontage) and the rear laneway (from 3.565 metres to the balcony to 5.465 metres to the living room frontage). He says at the height and setbacks, the visual impacts from this storey from either the laneway and dwelling at 41 Duke Street or from the other side of Chapel Street will be minimal.
5. Both Council and the objector say this fails to consider the multi-directional form of transition sought under the DDO21. Council acknowledged that building setbacks may assist in managing amenity impacts, but not the overall built form where height may contribute to visual bulk impacts. It says that rather than requiring increased setbacks of the upper levels above the streetwall, it made the reasonable decision to remove one level to reduce the bulk of the building whilst avoiding the loss of a dwelling across the top three floor levels. We consider this an acceptable approach.
6. In addition, we are persuaded that deletion of Condition 1b) would result in a discordant height transition. The building would rise above the corner site at 141 Chapel Street to an unacceptable extent, disrupting its function in defining the extent of the activity centre at the corner of Chapel Street and Duke Street.
7. The evidence of Mr Blades is that the urban design aspirations of DDO21 are consistent with 'best practice' contemporary design guidance for street-based activity centres. This includes a strong visual emphasis on the street wall within low-scale and heritage streetscapes, upper-level recession, a 'mid-rise' scale of maximum building height, transitionary building heights, and respect for the reasonable amenity expectations of residential sensitivities external to the activity centre.
8. His evidence is that the DDO21 takes a sophisticated sub-precinct-based approach to built form guidance, recognising that it is not a 'one size fits all' planning control. In this sense, he says the DDO21 seeks different things for different parts of the CSMAC and different levels of visible change. Some sub-precincts are relatively large and consist of a large number of different potential development sites with different physical contexts and interfaces, such as sub-precincts 2 and 4, while others, like the one in which the site is situated, are far smaller in size and have more 'targeted' aspirations for built form.
9. The evidence of Mr Blades is that Condition 1b) should be retained and the height of the proposed building reduced by one storey. However, he considers the condition should be amended to refer to the deletion of the fifth level i.e. the second top level, rather than the topmost one. (See Figure 4).