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[2001] VCAT 1915
appellant. Application for Review allowed; decision of the Responsible Authority set aside; permit granted for a second dwelling at 35 King Street, Camberwell, subject to specified conditions (plans...
VCAT allowed an applicant's review of a council refusal to permit a second dwelling on a corner lot in Camberwell. The Tribunal found that the proposed two-storey 'attic' dwelling could respect neighbourhood character and was not an overdevelopment, provided conditions addressed bulk, boundary setbacks and landscaping. The Tribunal accepted the officer's recommendation for 1 metre side setbacks (measured from the northern title boundary) to provide a visual break and detached character, and directed the Responsible Authority to issue a permit with conditions.
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1,815 words · generated 13/07/2026
The applicant (Permit Applicant and Applicant for Review) sought VCAT review of Boroondara City Council's refusal to grant a permit to construct a second dwelling on the rear portion of a corner lot at 35 King Street, Camberwell (Reasons [1], [3]-[6]). The site already contained a newly constructed two-storey Neo Georgian single dwelling fronting King Street; the second dwelling was proposed to front Bellett Street and to occupy what had been the rear yard, fenced off from the first dwelling (Reasons [3]-[5]). The proposal comprised a two-storey attic-style dwelling with a 142.3m2 footprint, a double garage on the northern boundary and access from Bellett Street, and an upper level integrated within the roofline containing two bedrooms (Reasons [3]).
1 cited instrument linked from this judgment.
Council refused the permit on three grounds: detrimental impact upon amenity, overdevelopment, and incompatibility with the area's character (Grounds of Refusal [9]). Objectors echoed those concerns and argued the new dwelling would appear crammed between the existing unit and neighbouring dwellings, aggravating bulk and streetscape impacts (Reasons [14]-[19]). The Officer's Report recommended approval only if conditions were imposed, in particular a 1 metre setback from the north and proposed south boundaries to create a visual break and a detached character (Reasons [23]).
VCAT (Member Gerard Sharkey) heard submissions and assessed the proposal against the planning scheme decision guidelines, Clause 22.07 neighbourhood character policy and the Good Design Guide. The Tribunal found that, subject to conditions including plan amendments, a landscape plan and minimum 1 metre side setbacks (northern setback to be measured from the title boundary), the second dwelling would respect neighbourhood character and would not be an overdevelopment. The Tribunal allowed the application for review, set aside the Council's refusal and ordered the Responsible Authority to issue a permit under s85(1)(b) of the Planning and Environment Act 1987, with detailed conditions (Reasons [20]-[26]; Order).
The Tribunal's decision rested on an evaluative judgment that balanced the proposal's design responses, applicable policy guidance and the capacity for conditions to mitigate adverse impacts.
Policy and decision guidelines: The Tribunal identified the relevant statutory framework, the site sits in a Residential 1 Zone where Clause 32.01 requires a permit for two or more dwellings on a lot and directs decision-makers to consider State and Local Planning Policy, Clause 22.07 Neighbourhood Character Policy and the Good Design Guide (Reasons [7]-[8], [11]). Those instruments supplied the substantive lens through which bulk, setbacks, streetscape and density were assessed.
Design and density assessment: The Tribunal accepted factual elements advanced by the applicant: the proposal had been designed with articulation, pitched roofs and dormer windows, and the upper level was absorbed into the roofline so as to mitigate perceived bulk (Reasons [19]). Importantly, the proposal met a density benchmark from the Good Design Guide (one dwelling per 368 sqm, compared to a benchmark of one per 250 sqm), which undercut arguments that the scheme represented inappropriate density per se (Reasons [13], [19]).
Amenity and visual break: The Officer's Report identified potential problems of continuous building line and lack of separation between the proposed dwelling and neighbouring structures (in particular the carport at No. 36 Bellett Street). To address that, the Report recommended a 1 metre setback to provide a visual break and a further 1 metre from the southern boundary to yield a detached character (Reasons [23]). The Tribunal considered these officer reasons persuasive and adopted the recommended conditions, clarifying that the northern setback should be measured from the title boundary because a Plan of Re-Establishment suggested the fence might not sit on the title line (Reasons [22]-[24]).
On the basis of these assessments and the prospect of effective conditions to mitigate impacts on amenity and character (including landscape works and clarification of a west window to Bedroom 2), the Tribunal concluded the proposal appropriately respected neighbourhood character and was not an overdevelopment (Reasons [21], [24]-[26]).
Before this decision, the governing planning framework for assessing multi-dwelling development in such zones was the same: a combination of the planning scheme's zone provisions, the State and Local Planning Policy Framework, and local design guides and neighbourhood character policies informed the discretionary exercise (Reasons [7]-[8], [11]). VCAT's role has consistently been to apply those instruments, assess the local context and, where appropriate, impose conditions to address amenity impacts.
What this decision illustrates in practice is VCAT's willingness to grant permission for additional dwellings on larger residential lots in an established area where the proposal demonstrates design responses to character, conforms with density benchmarks and where conditions can reduce visual bulk and overlooking concerns. The decision emphasises that the presence of a prior lawful dwelling on a lot does not prevent a separate merits assessment of a subsequent permit application (Reasons [20], [21]).
After this case: The judgment does not purport to change the law; it applies existing instruments to the facts and demonstrates the tribunal's approach to reconciling policy, design guidance and site-specific impacts. The operative effect is a factual precedent for similar cases: proposed multi-dwelling developments on corner lots which can be conditioned to provide an acceptable visual break and be designed to fit the character will be capable of approval.
"I do consider that the proposed dwelling, subject to some conditions, would respect the character of the neighbourhood, and it was the proposed dwelling that was before me." (Reasons [21])
"It is considered that a 1.0m setback is required ... to provide a 'visual break' ... to provide a detached character to the proposed development, which will be reflective of existing development in the area." (Officer's Report quoted at Reasons [23])
"I consider that this condition is desirable, for the reasons set out in the Officer's Report. I also consider that the northern setback should be 1 metre from the title boundary." (Reasons [24])
"For the above reasons this Application is allowed subject to conditions. It is appropriate for a permit to be granted, and I will so order." (Reasons [26])
This decision is most directly applicable where the following factual pattern exists:
When those elements are present, the Tribunal's approach suggests that approval with conditions that secure minimum side setbacks, landscape works and plan clarification is a practicable outcome.
The Reasons themselves do not cite any subsequent VCAT or court decisions. The decision is a factual application of planning scheme provisions and officer recommendations to the specific site. It therefore functions as a persuasive tribunal-level example rather than a binding higher-court precedent. Practitioners should treat it as indicative of tribunal reasoning on neighbourhood character and the practical use of conditions (setbacks, landscaping, plan amendments) to achieve acceptable outcomes. For authoritative change or higher-court principles, practitioners must look to reported decisions of superior courts or to later VCAT Full Court determinations if any.
Measurement in presence of disputed fence alignment: The Plan of Re-Establishment suggested the existing fence did not align with the title boundary. The Tribunal required the northern 1 metre setback to be from the title boundary (Reasons [22]-[24]). This raises the practical question of how disputes about fence versus title line should be tested and resolved in advance of conditioning, and whether a formal survey should be required as a prerequisite to issue of a permit condition. The Tribunal left the outcome of any action arising from the Plan of Re-Establishment unclear (Reasons [24]).
Interaction between a prior lawful dwelling and cumulative character impacts: The Tribunal accepted the earlier dwelling was lawful and did not revisit its merits (Reasons [20]). However, the presence of an existing two-storey dwelling on a lot may compound neighbours' perceptions of overdevelopment. The decision shows VCAT focuses on the application before it, but leaves unresolved broader questions of when incremental lawful developments cumulatively justify refusal of a later permit on character grounds.
Quantifying 'visual break' and 'detached character': The Tribunal adopted the officer's prescription of 1 metre setbacks. That choice is a fact-specific remedy rather than a general rule. How tribunals should calibrate setback widths versus other design measures (articulation, materials, landscaping) in different precincts remains an open practical question.
Role of density benchmarks: The Tribunal noted compliance with a Good Design Guide density benchmark (Reasons [13], [19]) but nevertheless weighed other character matters. The precise weight to be afforded to such benchmarks when they conflict with subjective neighbourhood character assessments remains a nuanced issue for future cases.
Limits of conditions to mitigate adverse impacts: This decision demonstrates that conditions (setbacks, landscaping, plan clarification) can be an effective remedy. The line between appropriate conditioning and permitting development that should properly be refused because conditions cannot cure inherent incompatibility is not fully delineated by this case and will remain a judgment for future fact patterns.
Concluding practical note for practitioners: where an application for additional dwellings on a lot may be contentious, emphasise demonstrable design responses to local character, include survey information clarifying title boundaries, and be prepared to accept and document targeted conditions (setbacks, landscaping, plan amendments) that address officer and neighbour concerns. This case shows that VCAT will readily employ conditions to reconcile development ambitions with local amenity and character objectives (Reasons [21]-[26]).
Planning, Medium Density Housing, Corner site, Second dwelling, Refusal, Application for Review, Permit
Medium Neutral Citation [2001] VCAT 1915
It is ordered that the Application for Review is allowed and the decision of the Responsible Authority is set aside. A permit is granted for a second dwelling at 35 King Street Camberwell, subject to the following conditions:
1. Before the development starts 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 will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:
a) The setbacks of the side elevations being a minimum of 1 metre from the north boundary of the subject land and the proposed south boundary, and these setbacks not resulting in reduction of secluded open space.
2. Before the development starts, or before a later date approved in writing by 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 then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:
a) A survey of all existing vegetation and natural features.
c) A schedule of all proposed trees, shrubs and ground cover, which will include the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified.
d) Paving, retaining walls, fence design details and other landscape works including areas of cut and fill.
e) The provision of large shrubs in the side setbacks.
3. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
4. 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 Council, drainage connections within a road reserve must be to Council standards, and a Council Supervision Permit is required for this work.
5. Any new crossing or alteration to an existing vehicle crossing must be in accordance with Council standard details. Any redundant vehicle crossing must be removed at the same time as the construction of any new crossover and prior to the completion of the development. The cost of removal of any existing crossing and the reinstatement of street assets (ie. footpath, nature strip and kerb and channel) must be borne by the permit holder and must be in accordance with Council Standards. A Council Supervision Permit is required for this work.
6. The permit holder and/or any other responsible person must meet the full cost of reinstatement of Council assets damaged as a result of building or construction works.
7. Before the dwelling is occupied, landscape works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority, and must then be maintained to the satisfaction of the Responsible Authority.
8. This permit will expire if one of the following circumstances applies:
a) The development is not started within two years of the date of this permit.
b) The development is not completed within four years of the date of this permit.
The Responsible Authority may extend the times referred to if a request is made in writing before the permit expires or within three (3) months afterwards.
The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.
For the Responsible Authority: Mr. S. Taylor, Planning Advocate
Respondents/Objectors: Mr. B. Docking, Mr. F. McInerney on
Permit Applicant: Mr. T. Radisich, Consultant Planner
1. This is an Application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of a decision of the Boroondara City Council ("the Responsible Authority") to refuse to grant a permit.
2. Mr. B. Docking and Ms. S. Chapman (who was an Objector) made application to be joined as parties. There was no objection and I joined Mr. Docking and Ms. Chapman as parties, pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998.
3. Mr. Taylor, in his written submission for the Responsible Authority, described the proposal as follows:
"The proposal is to construct a second 2 storey attic style dwelling in the existing fenced off rear yard. Key design elements of the plan include:
(1) The new dwelling with a 142.3m2 footprint with frontage to Bellett Street. The existing dwelling is to remain as is.
(2) The new dwelling is proposed to have a setback of 3.0m from Bellett Street and will be built from side boundary to side boundary. It is proposed that the front verandah come to within 2.4m of the Bellett Street frontage.
(3) A double garage is proposed to sit on the northern boundary and provide access from Bellett Street room exists for the accommodation of a third car on the driveway.
(4) The proposed new dwelling will comprise ground level lounge, dining, meals/family rooms with kitchen area, downstairs master bedroom with en-suite and walk-in robes. The attic level is to consist of two bedrooms and a bathroom (total upstairs 55.5m2)."
4. The subject land is on the north-west corner of King Street and Bellett Street. It is occupied by a new two storey brick detached dwelling, which is in a Neo Georgian style and which fronts King Street. The site for the proposed dwelling is what would otherwise be the rear yard of the existing dwelling, but it has been fenced off with a paling fence. The site fronts Bellett Street. There is no significant vegetation on the site.
6. Mr. Taylor described the surrounding land uses as follows:
North Directly north is a single storey 1930's period dwelling at No. 36 Bellett Street. This dwelling is setback 4.5m from the frontage and includes a single carport abutting the south boundary. There are two (2) habitable room windows facing the subject site.
South On the south side of King Street is the side elevation of No. 34 Bellett Street. The weatherboard Federation period dwelling includes a double storey rear addition which is currently under construction.
East On the east side of Bellett Street are predominantly single storey 1930's period dwellings and Californian bungalows. These dwellings are setback between 7m-9m from the frontage.
West Directly west is a single storey detached 1930's period dwelling at No. 33 King Street. This dwelling is setback 5.7m from the frontage and 0.8m from the east (common) boundary. There are two (2) windows in the east elevation facing the subject site. There is an existing tin shed located in the northeast corner which abuts the common boundary.
7. The subject land is covered by the Boroondara Planning Scheme and is in a Residential 1 Zone which is the subject of Clause 32.01. Clause 32.01-4 provides that a permit is required to construct two or more dwellings on a lot. That Clause also sets out Decision guidelines which are the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies, and the Good Design Guide. Decision guidelines are also set out at Clause 65.
8. Mr. Taylor also made reference to Clause 22.07, Neighbourhood Character Policy, which is applicable within the Residential 1 Zone. Mr. Taylor said that the subject land is within a Residential Urban Character Area No. 16.
1. The proposal will have a detrimental impact upon the amenity of the area.
2. The proposal is an overdevelopment of the site.
3. The proposed development is not in keeping with the character of the area.
1. The proposal will not have a detrimental impact upon the amenity of the area.
2. The proposal is not an overdevelopment of the site.
3. The proposed development is in keeping with the character of the area.
11. Mr. Taylor quoted the comments of the Urban Designer for the Responsible Authority, which were as follows:
"This proposed development is really fronting onto Bellett Street, a street in which mature existing trees, are a very important feature.
Unit 1, at 35 King Street, was totally inappropriate design response, to which this proposal should not be compared. I do not believe this proposal does fit into the existing context, much better.
While this proposal is 2 storeys, it's bulk is reasonably well articulated, with pitched roofs and dormer windows, attempting to "fit in" to the predominant building style, while Unit 1 built earlier, did not.
The main issue I would have with this proposal, is that it is built from boundary to boundary line. There is a habitable room with a large window on the north facade of unit 1, and I believe there may be some overlooking problems from the dormer window at the top of the first floor stairs. Because of this I would suggest, that the south wall of this proposal be set off the boundary at least 1 metre."
"The following issues are regarded as significant in the assessment of the current application:
The double storey building form is a major deficiency of this proposal. The built form is still considered to be inconsistent with the surrounding area in terms of its bulk when taken together with the existing unit. There are no two storey dwellings immediately adjacent. The area is characterised by single storey dwellings.
Such an instance as this the Good Design Guide suggests a side setback of 3m and a frontage setback of 6 metres for a corner allotment. The actual figures for this proposal are 3.0m and 6.1 m respectively."
13. Mr. Taylor acknowledged that the proposed density of one dwelling to 367.9 square metres satisfied the benchmark density suggested by Technique 1 of Element 1, Density of the Good Design Guide, which is one dwelling to 250 square metres. Mr. Taylor submitted, however, that the proposal was an overdevelopment, the density was inconsistent with the prevailing neighbourhood character, and the scale, style, setbacks to Bellett Street and fencing were inconsistent with neighbourhood character.
14. Mr. B. Docking, of 49 Bellett Street, made an oral submission. Mr. Docking submitted that the proposal was an overdevelopment and would be the second double storey dwelling on the subject land. He said that it did not respect the streetscape or the character of the area, having regard to the houses and trees in the area. He said that it would have appeared to be crammed between two dwellings, the other dwelling on the subject land and the dwelling at 36 Bellett Street to the north.
15. Mr. F. McInerney read a written submission of Mr. B. Kent-Hughes, a Respondent/Objector of 43 Bellett Street. The submission was that with the recently constructed dwelling any further development on the subject land would be an overdevelopment, and the proposed residence did not satisfy either the Good Design Guide or the Boroondara Interim Guidelines.
16. Mrs. I. McInerney of 36 Bellett Street spoke to a written submission. Mrs. McInerney submitted:
"As you have noted the property has frontage to King Street and Bellett Streets. The old home was demolished and the developer built an as of right "mock Georgian" on the front of the block facing King Street. This new home did not at all take into account its corner block frontage and the existing streetscapes and amenity of Bellett and King Streets. As a result the side facing Bellett Street consists of a high paling fence and a 2 storey sheer brick wall 2 metres from the pavement. At no stage were any of the residents contacted by the developer. However, later on all objectors to the unit 2 proposal did receive an anonymous threatening letter about the consequences if we did not withdraw our objections.
If the developer had been upfront about his intention to immediately build a second dwelling on the site the overall development would have been considered as a whole and may have been far more amenable to a corner block and more in keeping with the Bellett Street and King Street streetscapes. Instead he elected to adopt a "planning by stealth" approach."
17. Mrs. McInerney further submitted that the second dwelling would constitute a "gross overdevelopment" and that there would be "almost continuous building".
18. Ms. S. Chapman, a Respondent/Objector and the owner of 38 Bellett Street, spoke to a written submission. Ms. Chapman said that all vegetation had been removed prior to commencement of building.
19. Mr. Radisich spoke to a written submission for the Applicant for Review/Permit Applicant. Mr. Radisich submitted:
"The review site is located on the north-west corner of King Street and Bellett Street. It has a frontage of 18.29 metres to King Street; a sideage of 40. 23 metres to Bellett Street; and an area of 735.80 sq.metres. That portion of the site to accommodate the proposed dwelling has an 18.2 metre width of frontage to Bellett Street and an area of 33,3 sq.metres. The site has a fall of approximately one metre from its north-east corner to its south-west corner.
The re-establishment survey of the land shows a discrepancy between the northern title boundary and the fence between the review site & No.36 Bellett Street of between 0.84 and 0.67 metres in favour of the review site. That is, the fence exists to the north of the title boundary and additional land is within the occupation of the review site.
The site contains a recently constructed two-storey dwelling which is setback between 2 and 2.45 metres from Bellett Street. The adjoining property to the north at No.36 Bellett Street contains a single-storey dwelling setback between 4.5 and 5.3 metres from the frontage, with a driveway and carport adjacent to the northern boundary of the review site. The dwelling at No.38 Bellett Street has a setback of 6 metres.
The architecture has responded to characteristics found in existing housing in the area with respect to gables, pitched roofs, fenestration, and front verandahs. The upper level is absorbed into the roofline and accommodates two bedrooms and a bathroom and toilet. The proposal has an overall density of one dwelling per 368 sq.metres of site area, and a building site coverage of 51.50%.
The neighbourhood is characterised by a variety of building style and configuration. The surrounding area contains a number of two-storey dwellings with the occasional medium density housing interspersed throughout. The review site is outside the historic Golf Links Estate and is not subject to any overlay control. The site abuts a less intact character area which includes a range of buildings in terms of size, style, scale and age.
Built form in the locality exhibits characteristics which include high gables, pitched roofs, fenestration and verandahs. The design of the proposed dwelling has incorporated aspects of these particular elements and so more closely reflects the established character of the area.
The perception of visual bulk often presented by two storey, medium density developments has been successfully avoided by the incorporation of the small upper level element into the roofline and with the use of appropriate setbacks and facade articulation. The combination of these factors will ensure that the proposal will make a positive contribution to the character of the neighbourhood."
20. It would seem that at least some of the angst regarding the proposed dwelling relates to the Neo Georgian dwelling already erected on the subject land. It was common ground between the Responsible Authority and the Applicant for Review/Permit Applicant that a planning permit was not required for this dwelling, as it was a single dwelling on the area of which was 735.8 square metres. Mr. Radisich said on several occasions during the hearing that this was a "legal" dwelling. That statement is correct and the merits of that dwelling were not before me.
21. I do consider that the proposed dwelling, subject to some conditions, would respect the character of the neighbourhood, and it was the proposed dwelling that was before me.
22. The Responsible Authority tendered draft conditions that might be considered in the event that a permit was granted. Draft Condition 1(a) was contested by Mr. Radisich. This would require that the proposed dwelling be set back 1 metre from the north and proposed south boundaries. Mr. Radisich had earlier tendered a Plan of Re-Establishment that indicated that the northern fence was not on the title boundary. The possibility of a setback of 1 metre from the northern fence or 0.4 metres from the title line was canvassed. Mr. Radisich submitted that such a setback from the south boundary would not be appropriate.
23. I note that the Officer's Report, a copy of which was tendered by Mr. Radisich, recommended such a condition. The Officer's Report said:
"The scale of buildings throughout the site is a major issue raised by objectors. The main concern is that there will be a continuous building line along the east elevation to Bellett Street as there is only a 1.0m separation between the existing and proposed dwelling, and no setback between Unit 2 and the carport of No. 36 Bellett Street.
It is considered that a 1.0m setback is required between the garage of Unit 2 and the north boundary to provide a `visual break' between the new dwelling and the carport on No. 36 Bellett Street. It is further considered that a setback of 1 metre from the proposed south boundary of Unit 2 is required to provide a detached character to the proposed development, which will be reflective of existing development in the area. It is recommended that if approval is forthcoming that a condition be included on any permit issued."
24. I consider that this condition is desirable, for the reasons set out in the Officer's Report. I also consider that the northern setback should be 1 metre from the title boundary. Any action, and the outcome of any such action, arising out of the Plan of Re-Establishment tendered by Mr. Radisich must be unclear at this stage.
25. There was some confusion about the position of the west window to bedroom 2. I consider that it would be appropriate to include a condition providing for clarification of this matter on the plans.
26. For the above reasons this Application is allowed subject to conditions. It is appropriate for a permit to be granted, and I will so order.
Mitchell CJ
Boroondara CC [2001] VCAT 1915
Application for Review allowed; decision of the Responsible Authority set aside; permit granted for a second dwelling at 35 King Street, Camberwell, subject to specified conditions (plans amendment, landscape plan, setbacks including minimum 1 metre side setbacks, drainage, crossing works, reinstatement, completion timelines); Responsible Authority to issue permit pursuant to s85(1)(b) Planning and Environment Act 1987 (Order; Reasons [24], [26]).