//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2003] VCAT 1813
appellant. The Tribunal allowed the applicant's request and directed the Responsible Authority to issue a permit for three dwellings and a three-lot subdivision, subject to conditions including amended plans...
VCAT allowed an applicant's review of the council's failure to decide on a three-dwelling development and three-lot subdivision in Castlemaine. After inspecting the property and hearing evidence, the Tribunal found the zoning, State and local policy and Rescode requirements were met or could be met with conditions. The Tribunal directed the Responsible Authority to issue a permit subject to specified amendments and conditions (site offsets, landscaping to protect a cedar tree, carport location, drainage, energy rating, fences and time limits). The decision considered but distinguished a prior 2001 VCAT outcome because the applicable design framework had changed to Rescode.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,648 words · generated 22/06/2026
An owner/applicant (Dennis Maroudas) sought VCAT review under section 79 of the Planning and Environment Act 1987 of the Mount Alexander Shire Council's failure to decide an application for a three-dwelling development and three-lot subdivision at 28 Saint Street, Castlemaine (paras 1–3). The subject lot is relatively large (about 1,233 m²), contains an existing brick veneer dwelling set back from the street, and has a large cedar tree at the rear proposed to be retained (para 2). The proposal would add two single-storey brick dwellings at the rear and subdivide the site to form three lots; each new dwelling included two bedrooms, living spaces, a single carport and private open space of at least 64 m² (para 3).
No linked legislation citations have been extracted yet.
The Responsible Authority did not determine the application within statutory time limits, so the applicant invoked s79 review. The Responsible Authority informed the Tribunal that, if the review had not been lodged, it would have issued a Notice of Decision to Grant a Permit (para 5). The Tribunal inspected the site prior to the hearing (para 6), heard evidence from the applicant’s town planning consultant and from the objectors’ building designer called by the respondent (paras 13–14), and gave a verbal decision at the hearing to allow the review and direct the Responsible Authority to issue a permit (para 15). The Tribunal issued written orders directing the Responsible Authority to grant the permit with a suite of conditions addressing amended plans, landscaping (including protection of the cedar tree), sealing of car parking areas, drainage, energy efficiency, fencing and time limits (Orders and paras 16).
A previous VCAT process had resulted in a permit directed in April 2001 and issued May 2001, but that permit expired in May 2002 (paras 7–8). The current application was “basically the same” proposal but must be assessed under Rescode (Clauses 55 and 56) rather than the Good Design Guide used previously (paras 7–9, 11).
The Tribunal’s decision rests on a mix of legal and fact-based assessments:
Jurisdictional basis: The proceeding was a s79 failure-to-decide review, so the Tribunal’s task was to assess the planning merits and determine whether a permit should be issued (para 1).
Zoning and permissibility: The site is in the Residential 1 Zone where more than one dwelling requires a permit (para 4). The Tribunal concluded the zoning permitted multi-dwelling development and, given the site size, it was suitable for that purpose (para 16).
Rescode and policy compliance: The Tribunal explicitly applied Rescode (Clauses 55 and 56) as the controlling design standard for multi-dwelling residential development, rather than the Good Design Guide relied on in the earlier proceeding (paras 9–11). It found the proposal complied with State and Local policy, the overall planning scheme and Rescode, or could be made compliant via conditions (para 16). The Tribunal required certain plan amendments and conditions (e.g. increase rear offset to 4.5 m, a new carport location, an energy efficiency report demonstrating a 4-star rating) to secure compliance (orders and para 16).
Site inspection and factual findings: The Tribunal’s on-site inspection materially supported its conclusions. It found no streetscape issue because the existing dwelling would remain (para 16), the single-storey construction avoided bulk and overlooking impacts, and private open space and subdivision layout were satisfactory (paras 6, 16). Vehicular access and garaging were generally acceptable, with a condition imposed to address dwelling 1’s carport (para 16).
Precedent and procedural context: The Tribunal treated the prior VCAT-directed permit as relevant context but recognised the change in assessment framework from the Good Design Guide to Rescode (paras 7–9, 11). The fact the Responsible Authority would have issued a notice of decision absent the review was also noted (para 5).
Overall, the Tribunal allowed the permit because the sum of zoning permissibility, policy and Rescode compliance (with specified conditions) outweighed the objectors’ concerns about neighbourhood character and amenity (paras 10, 16).
Before this decision: The prior VCAT outcome in 2001 had considered the same development under the Good Design Guide and resulted in a permit direction. That permit expired before works commenced (paras 7–8). Since then, the applicable residential design framework in the planning scheme had shifted to Rescode, which provides more prescriptive standards through Clauses 55 and 56.
After this decision: The Tribunal applied Rescode to the same factual configuration and reaffirmed that a previously approved proposal does not automatically guarantee a fresh permit where the assessment framework has changed; however, the Tribunal will give substantial weight to prior determinations when the proposal is substantially the same, and will impose conditions to resolve non-compliances (paras 7–11, 16). The practical outcome is that applicants with earlier approvals should expect a Rescode assessment if the planning scheme changed, but the Tribunal will permit development that meets Rescode standards and planning policy, subject to conditions.
This VCAT decision therefore demonstrates two practical rules:
Para 1: “This application is brought under Section 79 ... to review a failure ... to grant a permit within the prescribed time.”
Para 7: “This proposal is basically the same as an approved development that was directed by VCAT to be granted a permit in April 2001.”
Para 9: “The proposal ... must be considered under Rescode whereas the 2001 permit had been considered under the Good Design Guide.”
Para 15: “The Tribunal ... gave a verbal decision to allow the permit applicant's request and to direct the Responsible Authority to issue a permit.”
Para 16 (select bullets): “The zoning will allow a multi dwelling development ... The proposal complies with State and Local policy, the overall Planning Scheme and Rescode ... The layout is not an overdevelopment ... The neighbourhood character will not be altered ...”
This decision speaks directly to fact patterns with these features:
When such a pattern arises, this decision indicates that VCAT will:
This deep dive is constrained to the present judgment text. The judgment itself expressly situates the earlier 2001 VCAT decision as a relevant comparator (paras 7–9) and distinguishes assessment frameworks. It does not cite higher court authorities or establish novel legal principles that would be binding beyond the direct facts and the Tribunal’s statutory function under s79 (paras 1, 7–11, 16). Users should treat the decision as a practical demonstration of how VCAT exercises its s79 power and applies Rescode; whether subsequent tribunals or courts treat it as an authority will depend on later fact patterns and whether higher courts have addressed analogous issues.
Several practical and legal issues remain open or are not settled by this decision:
Practitioners should therefore rely on the decision for the propositions that VCAT will enforce the currently operative design controls (Rescode), that prior approvals are relevant but not determinative, and that reasonable conditions can convert a permissible-but-imperfect proposal into an acceptable one (paras 7–11, 15–16). For contentious neighbourhood character questions, anticipate the Tribunal placing substantial weight on site inspection findings and the ability to tailor conditions to address amenity concerns (paras 6, 15–16).
The request to review the failure of the Responsible Authority to grant a permit for a three (3) dwelling development and a three (3) lot subdivision has been considered and allowed. The Responsible Authority is directed to issue a permit with the following conditions:-
1. Prior to the approval and endorsement of plans, 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 form part of the permit. The plans must be drawn to scale with dimensions and three copies provided. The plans must be generally in accordance with the plans submitted with the application, but modified to show:
* Dwelling 2 to be 4.5m off the rear (south) fence
* Suitable door access from dwelling 1 living area to its private open space
* Details of a proposed carport for dwelling 1 and located in excess of 6m from the east side fence to allow satisfactory manoeuvrability.
The development as shown on the endorsed plans must not be altered or modified (for any reason) except with the prior written consent of the Responsible Authority.
2. The development permitted by this permit must not be commenced until a satisfactory landscaping plan for the whole of the subject land is submitted to and approved by the Responsible Authority. An endorsed copy of the plan must form part of this permit. The landscaping plan must include:
* Details of the measures to ensure the adequate protection of the existing cedar tree during construction.
* A schedule of all trees and shrubs to be planted.
3. The landscaping as shown on the endorsed plan must be completed prior to occupation of the new dwelling (or such later date as the Responsible Authority may agree to in writing). The approved landscaping must be maintained to the satisfaction of the Responsible Authority.
4. Areas set aside for the parking of vehicles together with the aisle and drives must be properly formed to such levels that they can be utilised in accordance with the endorsed plan and must be drained and provided with an impervious all-weather seal coat. The area must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.
5. Areas set aside for parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose. All vehicles on site must be capable of being able to turn and exit the site in a forward direction.
6. Water must not be discharged from the subject land other than by means of an underground pipe drain to an approved outlet in a road or to an underground pipe drain and the drainage system must be designed to the requirements of the Council as the responsible drainage authority.
7. A report must be submitted to show that the new dwellings achieve a four (4) star energy rating.
8. The new east side and rear boundary fences to a height of 1.8 metres to be erected at the developer's cost prior to commencement of works on site.
9. Commencement of Development (two years) and Completion of Development (four years).
This permit will expire if the development permitted by this permit is not commenced within two years or not completed within four years from the date hereof. The times within which the development must be commenced and completed may on written request made before or within three (3) months after expiry of this permit be extended by the Responsible Authority.
Mr George Ryan, Solicitor who called Mr K Walder, Building Designer as his witness.
1. This application is brought under Section 79 of the Planning and Environment Act 1987 to review a failure of the Responsible Authority to grant a permit within the prescribed time.
2. The subject land as described by Mr Chisholm is:-
"The site is approximately 1,233 square metres in area with a frontage of 24.38 metres to Saint Street. The site is currently occupied by a brick veneer dwelling that is set back almost 8 metres from the Saint Street frontage. The site has a slight fall to Saint Street with a single driveway located on the east side of the dwelling.
The site has access to appropriate residential infrastructure.
Some earth works for the original development had commenced on the site.
There is a large cedar tree situated at the rear of the property which is to be retained.
The subject site is situated within close proximity to the centre of Castlemaine. Neighbouring properties are generally occupied by single storey detached houses on relatively large lots of 1000 sq metres. Land to the west is higher than this lot and a sloping stone and concrete bank at the rear of No 28 Saint Street acts as retaining wall. The Saint Street road pavement is split because of its elevated position and the natural fall of the road reserve.
* 650m from the Castlemaine commercial centre including medical centres.
Housing styles vary greatly from period homes and miners cottages to a mix of homes from the 1950s, 60s, 70s and 80s."
3. The proposal is to construct an additional two brick dwellings at the rear of an existing dwelling and to subdivide the land into three lots with a common driveway and open area adjacent to the front of the new dwellings.
The new dwellings consist of two bedrooms, a kitchen/meals area, lounge and amenities. Each will have a single carport and private open space of at least 64m². The existing dwelling shows with an existing carport on the plan, however, the inspection showed that it did not exist and one will have to be provided if the proposal proceeds.
4. The subject land and surrounding land is zoned Residential 1 under the Mount Alexander Planning Scheme and no overlay controls apply. A permit is required for more than one dwelling on the land and to subdivide.
5. This is a failure request and no reasons are, or need be given, however, the Responsible Authority wrote to the Registrar on the 17th of September 2003 indicating that if the request application had not been lodged, they would have issued a Notice of Decision to Grant a Permit with conditions.
6. The application was heard at Castlemaine and the Tribunal inspected the subject land and area prior to the hearing. This was told to those present at the commencement of proceedings.
7. This proposal is basically the same as an approved development that was directed by VCAT to be granted a permit in April 2001.
8. A Permit was issued in May 2001 and expired in May 2002 without a request hearing been considered and granted.
9. This proposal is then to obtain a new permit, the main difference now being that this must be considered under Rescode whereas the 2001 permit had been considered under the Good Design Guide.
10. The Responsible Authority supported this proposal based on the previous VCAT decision, however the objectors considered the proposed two rear dwellings would intrude into rear open space areas of existing built form in the area and therefore be out of character with the neighbourhood. In addition, other concerns were overlooking, poor design, now compliance with aspects of Clause 55 and 56 of the Planning Scheme and Rescode that would result in a poor standard of amenity for future occupiers.
11. In effect, the only change since the VCAT hearing in 2001 is a reconsideration of the proposal based on a Rescode assessment and in particular and concerns relating to neighbourhood character.
12. Mr Ryan raised a number of issues and those not relevant to a planning consideration of this proposal were dealt with immediately. Other peripheral matters were verbally replied to as necessary.
13. Mr Ryan called as his witness a building designer experienced in the Castlemaine area who raised a number of issues in terms of lot size, overshadowing, overlooking, private open space location, energy efficiency and traffic movement/parking as well as neighbourhood character.
14. All matters raised by Mr Walden, the building designer witness for the objectors were answered by Mr Ludeman or cleared in cross-examination.
15. The Tribunal with the benefit of the inspection and after hearing all submissions gave a verbal decision to allow the permit applicant's request and to direct the Responsible Authority to issue a permit.
16. The reasons for the decision were given and in summary form are:-
* The zoning will allow a multi dwelling development and the large site is suitable for such.
* The proposal complies with State and Local policy, the overall Planning Scheme and Rescode.
* The decision is made after considering matters discussed with the previous decision that not necessarily related to Good Design Guideline issues.
* There is no streetscape issue due to the existing dwelling remaining.
* The proposal is for single storey construction and no abutting amenity losses will occur from overlooking, overshadowing or bulk.
* The dwellings are offset from boundaries however the rear offset will be required to be increased to 4.5m.
* The Tribunal is satisfied with the Energy Efficiency report and a condition will require those to be submitted to the Responsible Authority for assessment.
* Vehicular access and garaging are satisfactory except for dwelling 1 and a condition will resolve a new carport for it.
* The layout is not an overdevelopment and there is ample room for landscaping including canopy trees.
* Proposed private open space is adequate and satisfactory.
* The neighbourhood character will not be altered by this proposal after viewing the area.
Maroudas
Mount Alexander SC [2003] VCAT 1813
The Tribunal allowed the applicant's request and directed the Responsible Authority to issue a permit for three dwellings and a three-lot subdivision, subject to conditions including amended plans (dwellings' offsets and carport placement), a landscaping plan protecting a cedar tree, sealed car parking, approved drainage outlet, energy efficiency report (4-star), boundary fences, and commencement/completion time limits (orders as set out).