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[2003] VCAT 1231
appellant. The Tribunal set aside the decision of the Responsible Authority and granted a permit for demolition of the existing shop/dwelling and construction of two two-storey dwellings at 2 Berry St,...
VCAT allowed the applicant's review of Maribyrnong Council's refusal and granted a permit to demolish a run-down contributory shop/dwelling and build two contemporary two-storey houses. The Tribunal accepted that the building's poor condition meant retention was not compulsory, found the design would fit the streetscape and that amenity impacts could be addressed by conditions, notably lowering one unit by 0.5 m and screening a first-floor deck.
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1,644 words · generated 12/07/2026
Kara Nominees Pty Ltd sought a planning permit for demolition of an existing shop/dwelling and construction of two two-storey dwellings at 2 Berry Street, Yarraville. The Maribyrnong City Council refused the permit on 3 March 2003, citing excessive building bulk and massing, loss of amenity to neighbouring properties, adverse effects on the streetscape, inconsistency with the Heritage Overlay objectives and multiple Clause 55 (ResCode) standards (see para 24). The Applicant applied to VCAT under s77 of the Planning and Environment Act for review (para 1). The Tribunal heard the matter on 22 August 2003, visited the site, considered submissions including a report from Archicentre about the condition of the existing building and heritage advisor comments, heard neighbours' objections and evidence, and granted a permit subject to conditions. The Tribunal set aside the Responsible Authority's decision and imposed a suite of conditions, including amended plans, landscaping, screening of a deck and a reduction in the overall height of Unit 2 by 0.5 metres (Orders and paras 31-36).
1 cited instrument linked from this judgment.
Key procedural points: the application was amended at the hearing to include demolition under s64 of the VCAT Act (para 2). There had been a prior VCAT matter concerning an earlier three-unit proposal on the same site (Application No. 2001/P50781), which the Tribunal recorded as having failed principally for excessive bulk and an inappropriate use of the rear right of way for access (para 20).
The Tribunal's decision rests on three linked findings:
Condition of the existing building and heritage considerations (paras 21, 26-28). The Tribunal had no evidence from the Responsible Authority proving that retention of the shop/dwelling was necessary. The Archicentre report concluded the building had reached a state where it "may not be salvageable without substantial investment" and that mid 20th century alterations had removed its best Victorian features (para 27). On that factual basis the Tribunal concluded "there are no compelling arguments to require the retention of the existing shop/dwelling" (para 28). That factual conclusion allowed the Tribunal to consider demolition and redevelopment as an available and lawful outcome under the heritage overlay, provided the redevelopment did not adversely affect the precinct's significance.
Compatibility with streetscape and neighbourhood character (paras 29-31). The Tribunal analysed siting, setbacks, articulation and built form. It found the proposal was "advantaged by its location at the end of a run of dwellings facing Berry St" and that the front façade was well articulated to pick up local roof angles and window forms (para 29). Setbacks were considered in context: the 4 metre front setback was 0.6 metres further forward than the adjoining western dwelling but acceptable given a nearby zero setback and a 1.5 metre side setback on the east (para 30). The separation between the two dwellings and their roof treatment reduced perceived bulk, and the Tribunal required a modest reduction in the height of Unit 2 by 0.5 metres to further reduce impact (para 31).
Amenity impacts and proportional remediation by condition (paras 32-36). Objectors raised overshadowing, overlooking and loss of outlook. The Tribunal considered the overshadowing to be within the Good Design Guide parameters and noted the affected property enjoyed good northern orientation and would receive direct sunlight from about 10.00 am at the equinox (para 32). To address concerns it ordered both a reduction in height for Unit 2 and screening of the first-floor northern deck to 1.7 metres (paras 31, 34). The Tribunal judged the visual impact on 314 Nicholson St to be within reasonable bounds given an existing 7 metre workshop wall, the separation via a 3 metre right of way, and the alignment of built forms (para 35).
Taken together, those findings show the Tribunal applied a fact-sensitive planning balancing exercise: where the evidence did not mandate retention of the existing building and where a contemporary redevelopment could be shaped to respond to streetscape and amenity by reasonable conditions, the Tribunal preferred to allow redevelopment rather than uphold refusal.
Before this decision, the applicable planning framework required a decision-maker to balance heritage conservation objectives with broader planning outcomes such as housing diversity, efficient use of infrastructure and neighbourhood character, as expressed in the state and local planning policy frameworks and in Clause 55 (paras 13, 16-19). The Tribunal here reiterates the principle that heritage overlay objectives do not absolutely prohibit demolition; retention is driven by evidence of heritage significance and condition (paras 14, 26-28). The decision confirms that, in the absence of compelling evidence to retain a contributory building, an application proposing demolition may be approved if the replacement development is designed and conditioned to respect character and mitigate amenity impacts.
After this decision, the practical legal position remains that heritage considerations are prominent but not automatically determinative. Decision-makers and tribunals will look for concrete evidence of heritage value and practicability of retention before insisting on retention; where redevelopment can be conditioned to respond to the overlay's objectives, permission may be granted. This case exemplifies that approach rather than creating a new legal rule.
"The Tribunal does not consider in the circumstances that there are compelling arguments to require the retention of the existing shop/dwelling on the land." (para 28)
"The Tribunal finds with respect to the streetscape presentation of the proposal, that the proposed development is advantaged by its location at the end of a run of dwellings..." (para 29)
"The Tribunal finds with respect to building bulk ... the use of angled roof forms helps to reduce the potential bulk of the proposal. The Tribunal however finds the impact can be further reduced by lowering unit 2 by half a metre." (para 31)
"The building height is well below the maximum 9 metres contained within the Recode and in the Tribunal's view a further reduction of half a metre is possible." (para 36)
This reasoning is most directly applicable where:
If these features are present, a decision-maker should carefully test heritage retention evidence and consider whether conditions can address amenity concerns before refusing.
This deep dive is limited to the single VCAT decision and the text of the judgment. The decision itself refers to an earlier VCAT file on the same site, noting a prior refusal for a larger three-unit proposal because of bulk and use of the right of way for access (para 20). That prior decision is recorded and considered in the Tribunal's reasoning but is not cited as a higher-court precedent. The present judgment stands as an instance of VCAT's fact-driven exercise of planning discretion; it does not purport to overrule or substantially modify broader doctrinal principles. Users should examine subsequent VCAT decisions and any relevant planning scheme amendments (C31 was on exhibition at the time, para 19) to see later treatments and whether this approach has been applied consistently in other heritage/settings.
Strength of evidence required to compel retention of a contributory building: The Tribunal relied on an Archicentre report and absence of RA evidence to find retention unnecessary (paras 26-28). How detailed must heritage evidence be before a decision-maker can lawfully refuse demolition? The judgment illustrates an outcome but does not set a bright-line evidentiary standard.
Weight to be given to draft amendments and emerging heritage listings: Amendment C31 was on exhibition and the site was in a heritage overlay (para 19). The decision does not elaborate on how an imminent but not finalised amendment should affect determinations.
Limits of conditioning reductions below statutory maxima: The Tribunal required a reduction below the 9 metre ResCode maximum (para 36). Future disputes may probe how far a tribunal can require reductions where a proposal already complies numerically but neighbours argue for lower built form.
Access and use of rights of way: The earlier three-unit refusal involved use of the right of way for access (para 20). This decision disapproved the earlier access approach; however this judgment leaves open precise rules on when right-of-way access is acceptable for new dwellings.
Generalisability beyond particular site geometry: Some of the Tribunal's comforts (two crossovers acceptable; ample landscaping potential) were grounded in site-specific facts such as lot width and coverage (para 30, 36). Applying this decision to narrow lots or different contexts may produce divergent outcomes.
Practitioners advising clients should treat Maribyrnong CC v Kara Nominees as a close, fact-dependent example of VCAT balancing heritage preservation against redevelopment and amenity, instructive on the kinds of evidence and conditions the Tribunal may find determinative, but not as a universally applicable rule.
The decision of the Responsible Authority is set aside. A permit is granted for the demolition of an existing shop/dwelling and the construction of two, two storey dwellings on land at 2 Berry St Yarraville, generally in accordance with endorsed plans and subject to the following conditions:
a) A landscaping plan drawn by a qualified Landscape Architect. The plan must show the following:
* A survey of all existing vegetation and natural features;
* A schedule of all proposed trees, shrubs and ground cover, which will include the location and size of maturity of all plants, the botanical names of such plants and the location of all area to be covered by grass, lawn or other surface material as specified;
* Paving details and finishes to driveways, internal pedestrian pathways and courtyard areas must be specified on the plan;
* Retaining walls, fence design details including heights and other landscape works including areas of cut and fill;
* The landscape plan should clearly delineate between those areas used for outdoor recreation activities and those areas used to accommodate site and service facilities including clotheslines, storage facilities, garbage and recycling facilities, location of hoses and taps; and
* Non invasive plantings or root barriers where adjoining the sewerage lines.
Landscaping in accordance with such approved plan and schedule shall be completed before the commencement of occupation of the building hereby permitted. An endorsed copy of the landscape plan will form part of the permit.
b) A 1.7 metre screen on the northern aspect of the first floor deck of unit 2.
c) Ground floor and first floor site layout plans all on one sheet clearly indicating setbacks to all boundaries at a scale of 1:100 or 1:200.
d) All garages clearly dimensioned on the site layout plan.
e) The provision of a 4 metre turning radius abutting the garage of unit 2 to provide for increased landscaping opportunities to the front of unit 2 and to the backyard area of unit 1.
f) Increase in the landscape area to the front of the lounge room to unit 2 and along the driveway area.
h) Finished floor levels for the dwellings and garages.
i) A reduction of the overall height of unit 2 by 0.5 metres over Bedroom 3 and ensuite and robe of Bedroom 1 and 2.
j) Details of the screening devices to be provided on the windows to the satisfaction of the Responsible Authority.
This permit shall not come into effect until amending plans required by Condition 1 have been submitted to the Responsible Authority and approved.
Plan 6 Community Infrastructure Contribution ($450 per net new dwelling)
Total contributions payable to Maribyrnong City Council based on (3) net new dwellings is $450.00
* The development is not started within two years of the date of this permit;
* The development is not completed within four 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 after woods.
Ms Julie Anne Pearce, Ms Loretta Cotter, Ms Juliet Mashford, Mr David McCracken, Ms Susan Highland
1. This was an application under Section 77 of the Planning and Environment Act 1987 to review a decision by the City of Maribyrnong to refuse to grant a permit in Application No. TP02/0417 for land at 2 Berry St Yarraville to be developed with two dwellings.
2. At the commencement of the proceedings, the Responsible Authority pointed out that it would be appropriate to amend the application to include demolition under the provisions of section 64, schedule 1, of the VCAT Act 1987. The permit Applicant's made the application for the inclusion of demolition, and there being no objection, the amendment was made as requested.
3. Subject site is located on the northern side of Berry St some 44 metres west of Nicholson St. The site has a south boundary to the street of 14.63 metres and a west boundary of 47.43 metres. The eastern boundary of the site steps in and the northern boundary, as a consequence, is 10.63 metres. The overall site area is approximately 624 square metres.
4. The site is, at present, occupied by a single storey shop/dwelling, constructed to the street frontage with a canopy extending over the footpath. This dwelling is setback 3.2 metres from the western boundary and 1 metre from the eastern boundary. With a cross over and driveway along the western boundary. To the west of the subject site is a single storey weatherboard dwelling setback 4.6 metres from the street.
5. The site is abutted to the east by the rear yards of five Nicholson St properties and to the north by a right of way. This right of way dog legs to the site off Nicholson St, two properties to the north of the Nicholson St properties with direct abuttal to the site. The step in the eastern boundary of the subject site is as a result of access being provided off the corner of the right of way, to Number 316 Nicholson St.
6. The properties to the rear of the subject site on the opposite side of the right of way comprise the private open space and rear garden areas of properties addressing Princess St. Land immediately opposite the site is occupied by single storey dwellings with land further to the west comprising the old Yarraville Campus of Victoria University of Technology which is at present vacant.
7. Number 312 Nicholson St is occupied by a motor repair workshop. This use is non-conforming in the zone. Number 312 is located immediately to the north of the last Nicholson St property that abuts the subject land. This workshop has a 7 metre wall along part of the northern boundary with the adjoining residential property.
8. The Tribunal was informed by the Responsible Authority and this was borne out on inspection, that Berry St was a two way street with unrestricted parking. In addition, the site is well located with respect to public transport and community facilities, including a bus service along Nicholson St and the Seddon railway station within reasonable walking distance.
9. The application is for two, two storey dwellings on the subject land, with vehicle access provided by way of two cross overs, one on the eastern and one on the western boundary of the site. Parking is provided for unit 2 to the rear by way of a double garage and for unit 1 by way of a single garage setback 7.2 metres from the street frontage with visitor parking in tandem. Each of the dwellings comprises three bedrooms at first floor level, although dwelling 2 has a fourth bedroom/study at ground floor.
10. The dwellings are contemporary in design and each is provided with generous north facing open space with good access from the main living areas. A separation of just under 6 metres is provided between dwellings 1 and 2 at ground floor level, increasing to just over 12 metres at first floor level. The frontage setback, as proposed, is 4 metres to the dwelling façade at ground floor level. This area, however, is intruded into by a first floor deck.
11. The proposal has a number of zero setbacks from the eastern side boundary corresponding to the garages for both units and the living room of unit 2. The remaining eastern side setback of unit 2 is 1.28 metres, the western side setback of this unit is 1.2 metres. The western setback of unit 1 is some 3.5 metres. The rear setback of unit 2 at first floor level is 5.31 metres to the lane. There is a small deck at first floor that intrudes some 1.7 metres into this rear section. Greater setbacks are provided at first floor level on all aspects, the only intrusions being the first floor decks of both units.
12. The subject site lies within the residential one zone within a heritage overlay. A development contribution plan overlay also applies to the zone. A permit is required under the provisions of both the zoning and the overlay.
13. The Responsible Authority is required in assessing the proposal under the zone provisions to have regard to the state and local planning policy frameworks, including the municipal strategic statement and local planning policies, and the objective standards and decision guidelines of Clause 55.
14. The heritage overlay has, among its purposes,
* to conserve and enhance heritage places of natural cultural significance, and
* to ensure that development does not adversely affect the significance of heritage places.
15. Under the development contribution overlay a contribution is required of $450 per net new dwelling.
16. Medium density housing is encouraged under the provisions of the state planning policy framework. In particular, the policy seeks to encourage well designed medium density housing which respects:
* makes better use of existing infrastructure, and
17. The local planning policy framework also encourages well designed medium density housing and, in particular, seeks to improve residential amenity, consolidate and enhance existing distinct neighbourhood character and ensure the preservation of heritage.
18. The Responsible Authority has a local planning policy, Clause 22.01, Residential Zone One, Land Use and Development Policy, which among other things, seeks to preserve and enhance the current mixed period character of the municipality and to ensure new buildings with modern architectural characteristics are sympathetic to the general ambiance of their context and do not create a visual clash.
19. The Responsible Authority also has an amendment afoot, amendment C31, currently on public exhibition. The amendment proposes a number of new heritage sites to be included within the heritage overlay. The overlay covering the subject site, "The Seddon Residential and Commercial Heritage Area", has the following objectives:
* To conserve and enhance the elements in the area which derive from Edwardian and Victorian-era, as expression of this part of the City's growth period and the relationship it had with the railway line and its stations. Elements include buildings, objects, landscapes, land and street works.
* To conserve and enhance the area's Victorian and Edwardian era style residential dwellings.
* To conserve and enhance the inter-relationship of the residential, commercial and transport uses arising from the Victorian and Edwardian era.
* To encourage the use of upper levels of commercial buildings for residential purposes.
* To encourage the restoration and reinstatement of original shop veranda's and display windows, as evidence allows.
* To encourage the retention of the subdivision pattern as at circa 1920.
20. The present application follows an earlier application for the construction of three, two storey units on the subject land. This application went to VCAT following a refusal on the part of the Responsible Authority. The Responsible Authority's decision was upheld at appeal. Application No. 2001/P50781. The Tribunal at that time was of the view that the application principally failed on the basis of excessive building bulk and massing, and more particularly, the impact on surrounding residential properties. The Tribunal was also of the view that it was inappropriate to use the rear right of way for car access as was proposed. The Tribunal did not consider a two storey development out of the question and was generally supportive of the contemporary design.
21. The present application was received by the Responsible Authority in August 2002. The Responsible Authority referred the development proposal to their heritage advisor, who made the following comments:
"I have seen the proposal and the existing building from the outside. The existing shop has been evaluated as being a contributory building in HA9.
Against the context of interim heritage controls, the proposed two unit development is inappropriate for a number of reasons:
1. The possible demolition of the building has not been explored ( have not had the opportunity to do an internal inspection. An internal inspection often reveals sufficient information to make the decision to pursue demolition or not);
2. If the shop is sufficiently structurally sound, then there is the opportunity to convert it into a dwelling (a more and more common approach in shops of this type and location);
3. There may be an opportunity to have a second storey component behind the existing shop, set back behind the parapet;
4. The insertion of a second dwelling can be explored but this second dwelling should be in essence single storey;
5. With respect to the second dwelling there is scope to create a single storey building that could contain a (small) attic style second storey, say, a master bedroom and ensuite;
6. Although often undesirable in heritage areas, unit development that respects the scale and amenities of the existing street and back yard scapes, tend to be more fitting and compatible with the objectives of the heritage overlay."
22. Advertising was undertaken, and as a consequence, nineteen objections were received.
23. A mediation was held by the Responsible Authority in November, but no resolution was achieved at this time.
24. The Responsible Authority resolved at its meeting on the 3rd March 2003 to issue a notice of refusal to grant a permit on the following grounds:
1. The proposed development is out of character with the area in terms of building bulk and massing.
2. The proposed development will lead to a loss of amenity to the neighbouring properties.
3. The proposal will adversely affect the streetscape.
4. The design of the proposed buildings does not meet the objectives of the Heritage Overlay and will affect the significance of the heritage precinct.
5. The proposal does not meet the requirements of Clause 55 (Rescode) with regard to the following standards and associated objectives.
B2. Residential Policy (comprising MSS, State and Local Policies.)
25. The Tribunal is of the view, after hearing the submissions before it and visiting the appeal site, that the issues in this matter relate to the impact of the proposed development on the character of the area, with respect to the streetscape and the overall building bulk, and the impact of the proposed development on the amenity of adjoining properties.
26. It is appropriate as a preliminary matter to consider the heritage value of the existing shop on the subject land. No evidence was called for the Responsible Authority with respect to the heritage value of this building. The Tribunal was provided with a report from the Archicentre with respect to the condition of the building. The report, among other things, stated the following:
27. "Lack of maintenance has reached the point where this building may not be salvageable without substantial investment. The structure, finish and services are in a very poor condition. The 1950's alterations have also unfortunately removed the former Victorian building's best features."
28. The Tribunal does not consider in the circumstances that there are compelling arguments to require the retention of the existing shop/dwelling on the land.
29. The Tribunal finds with respect to the streetscape presentation of the proposal, that the proposed development is advantaged by its location at the end of a run of dwellings facing Berry St adjoining the Berry St sideage of a Nicholson St dwelling.
30. The Tribunal finds that the proposed development reflects the spacing between built forms within the street. The front facade is well articulated and picks up on roof angles and window forms reflective of the historic dwellings in the area. The setback proposed, 4 metres, is 0.6 metres further forward than the adjoining dwelling to the west. The Tribunal considers the reduced setback is acceptable in the context of the existing zero setback and the adjoining 1.5 metre side setback of the property to the east. The Tribunal has no concerns with respect to the two cross overs proposed, given that the subject site is approximately twice the width of the adjoining property to the west.
31. The Tribunal finds with respect to building bulk as viewed from adjoining properties that the location of the second dwelling on the land with a significant separation at ground floor level and a greater separation at first floor level helps to preserve the openness that is a feature of the area. In addition, the dwelling is setback some 5.3 metres from the row the rear. The Tribunal finds that the use of angled roof forms helps to reduce the potential bulk of the proposal. The Tribunal however finds the impact can be further reduced by lowering unit 2 by half a metre.
32. A number of neighbours have concerns about the impact of the proposed development on their amenity. The adjoining neighbour to the west had particular concerns about overshadowing. The main living area and rear garden will be impacted by shadow at 9.00 am in the morning. The extent of this overshadowing lies within the provisions of the Good Design Guide. It was however, the submission of Ms Cotter, that her house was generally cold and damp and she was reliant on light from the east.
33. The Tribunal is of the view that reducing the overall height of unit 2 will partly address this situation. The Tribunal does not consider it appropriate to require additional adjustments with respect to the overshadowing, given that the property affected has good northern orientation and will be in recept of direct sunlight from 10.00 am at the equinox.
34. The neighbour to the rear, although not present at the hearing, had concerns related to the potential for overlooking from the rear balcony or deck of unit 2. The Tribunal is of the view that it would be appropriate to screen the north face of the deck to a height of 1.7 metres to remove any perception of overlooking from this aspect.
35. The owners 314 Nicholson St had concerns with respect to the closing in of their outlook. The rear yard of this property is joined by a 7 metre high wall associated with the non-conforming mechanics workshop to their north. This objectors property is separated from the subject land by the 3 metre wide right of way which accesses No. 316 Nicholson St. The property partly aligns with the east west section of the right of way and the rear private open space of the proposed development, the direct alignment of unit 2 only having a 2 metres alignment with the objectors rear boundary or 3.7 metres if the first floor balcony is included. In addition, the immediate wall height in this vicinity is 5.5 metres. The Tribunal finds in these circumstances that the visual impact is not outside what is reasonable. In addition, there will be no overshadowing of this property before 3 pm at the equinox.
36. The Responsible Authority also had a number of concerns with what they perceived to be the failure of the proposal to meet a number of requirements of Rescode. These were street setback, building height, landscaping, access, side setbacks, overshadowing, overlooking and storage. The Tribunal finds that these matters are either able to be handled by conditions eg storage and overlooking or are of mirror significance. Matters relating to overshadowing, site setbacks and access have already been dealt with in the preceding. The Tribunal further finds with respect to landscaping that there is ample opportunity for landscaping on site, the site coverage being relatively low. The building height is well below the maximum 9 metres contained within the Recode and in the Tribunal's view a further reduction of half a metre is possible. As has already been stated, the Tribunal has no concern with the minimal encroachment of the proposed development forward of the dwelling to the west, given the abuttal with the sideage of the dwelling to the east.
37. The Tribunal therefore determines that a permit, with conditions, should issue.
Maribyrnong CC
Kara Nominees Pty Ltd [2003] VCAT 1231
The Tribunal set aside the decision of the Responsible Authority and granted a permit for demolition of the existing shop/dwelling and construction of two two-storey dwellings at 2 Berry St, Yarraville, generally in accordance with the plans and subject to detailed conditions including amended plans, landscaping, reduction of unit 2 height by 0.5 metres, and screening of the north face of the first-floor deck to 1.7 metres (Orders; Conditions 1(a)-(k), 3, 23, 25; see paras 31-36).