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[2008] VCAT 551
appellant. The responsible authority's decision was set aside. A permit for three dwellings at 82 David Street, Lalor, was directed to be issued subject to the conditions in Appendix A.
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The Tribunal allowed the review of Council's refusal of a permit for three attached, single-storey dwellings. It considered the actual plans and site context, including the low-rise form, setbacks, open-space areas, windows, garages, and site coverage. It found the principal concerns did not establish that the proposal was unacceptable under the planning provisions described in the reasons. A permit was granted subject to detailed conditions, including landscaping, drainage, access, and construction requirements.
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In Morihovitis v Whittlesea CC [2008] VCAT 551, Theo Morihovitis applied to the Victorian Civil and Administrative Tribunal for review of Whittlesea City Council's refusal of a planning permit. The application concerned 82 David Street, Lalor, an established residential area. The rectangular site had an area of 649 square metres, a frontage of 16.46 metres and a depth of 39.45 metres. It contained a single-storey weatherboard dwelling. The nearby properties were also described as single-storey dwellings, with driveways beside the subject land.
The proposal was to replace the existing dwelling with three attached, single-storey dwellings arranged down the lot. One dwelling had one bedroom and two had two bedrooms. The proposed site coverage was 43.62 per cent, below the 60 per cent ResCode standard stated in the reasons. Proposed permeability was 33.96 per cent, above the 20 per cent standard stated there. The land was in the Residential 1 Zone and was affected by a Development Contributions Plan Overlay. The Tribunal noted that a permit was required for a second dwelling under the zoning, that Clause 55 of the Whittlesea Planning Scheme was relevant, and that the overlay did not itself trigger a permit requirement.
Council refused the permit on a series of Clause 55 grounds, including neighbourhood character, street integration, energy efficiency, safety, landscaping, access, parking, dwelling entry and design detail. It also alleged overdevelopment. At the hearing, Council's town planner focused on the attached form, the claimed lack of north-facing windows in Dwelling 2, the location of secluded private open space west of Dwellings 1 and 2, the street presentation of Dwelling 3's entrance, and parking provision.
The hearing took place on 4 April 2008 before Des Eccles, Member. On 9 April 2008, the Tribunal set aside Council's decision and directed that a permit issue, subject to Appendix A. The conditions required, among other matters, a drainage contribution, revised plans showing external colours and accessway materials, a detailed landscape plan, drainage engineering, construction of accessways and services, and completion of landscaping before occupation. The permit also stated that it would expire if the development or a stage was not completed within four years after issue, subject to the extension process described in the condition.
The Tribunal's reasons address the particular objections and the evidence about the plans. They do not announce that every attached development, or every three-dwelling proposal on a similar lot, must be approved. The result turned on this proposal's form and layout, its effects on neighbouring properties, and the planning standards identified by the Member.
On neighbourhood character, the Member accepted the reasoning in Ikonomidis Reid v Whittlesea CC [2006] VCAT 1796 that attached buildings may be appropriate because they can use a site efficiently and may not be visible as attached from the street. In this case, the attached nature of the buildings would not be visible from the street. The proposal was single storey, had varied setbacks from the western boundary, and had a driveway on the eastern boundary alongside the adjoining property's driveway. The only building at the boundary was part of Dwelling 3 near the rear boundary, limited to its bedrooms. The Member concluded that the development would not cause an unreasonable amenity impact through its presentation or otherwise.
The daylight concern about Dwelling 2 was answered by the plans: they showed a north-facing roof window. The Member also referred to windows in the eastern and western elevations and found no suggestion that the dwelling would lack adequate daylight. On energy efficiency, the reasons state that the dwellings had to meet a five-star rating under building permit requirements and that a report lodged with the application said that the proposal would achieve that rating.
For the secluded private open space, Council argued that the western location would make the areas hot in summer. The Member did not accept that orientation alone made the spaces unsuitable. The reasons identify three central qualities: the space should be usable, sufficient in area, and not unduly overshadowed. The Member found the proposed spaces had those qualities. The adjoining driveway to the east also made the west side a sensible location in this site's arrangement.
The entrance to Dwelling 3 was assessed in its context as a rear dwelling. It would be clear to people travelling down the driveway and would start to be visible from beside Dwelling 2. The Member accepted that a rear dwelling would rarely have an active relationship with the street, and found the location and design of the entrance acceptable.
Parking was a particularly emphatic part of the reasons. The proposal included three single garages. Council's planner said Council directed officers to apply two on-site spaces per dwelling for dwellings with two or more bedrooms, despite the Clause 55 standard described by the Member as one space for one- and two-bedroom dwellings. The Member rejected that approach and said the reported Council direction was “outrageous”. The reasons also contain a warning about hypothetical future refusals based on that higher rate, including a statement about costs if costs were sought. The decision's operative result, however, concerns this permit application.
Finally, the Member rejected the claim of overdevelopment by reference to the proposed site coverage and permeability, as well as the development's modest single-storey form and absence of unreasonable amenity impacts. The Tribunal then granted the permit with conditions intended to address implementation matters such as landscaping, drainage, materials, access and services.
The judgment does not describe a change to the statutory planning framework. Before the decision, the matter was governed by the Residential 1 Zone and Clause 55 of the Whittlesea Planning Scheme, as identified in the reasons. The Member treated the Clause 55 standards as relevant to the review, including the one-space parking standard stated for one- and two-bedroom dwellings.
The decision changed the outcome for this application: Council's refusal was set aside and a permit was directed to issue. It also records the Member's application of the reasoning in Ikonomidis Reid v Whittlesea CC [2006] VCAT 1796. The Member agreed that attached buildings may be appropriate where their form supports efficient site use and is not visible from the street. The reasons do not state that this approach overrides other planning considerations or establishes an unconditional entitlement to approval.
The decision is a VCAT decision on a particular proposal. The supplied judgment does not identify any later cases, appeals, or subsequent judicial treatment. It therefore supports an account of what this Tribunal decided and the reasoning it applied, but not a claim about how later courts have treated it or about its current status beyond the text supplied.
The reasons also refer to the Planning and Environment Act 1987 in connection with permit expiry and landscaping enforcement. They do not provide a statutory section number or analyse a contested interpretation of that Act. Accordingly, this judgment should not be read as establishing a general rule on permit extensions or landscaping bonds beyond the Member's stated views and the conditions in this permit.
The source text presents repeated paragraph numbers, generally restarting at “1” under different headings. It does not supply a reliable continuous paragraph sequence. For that reason, the passages below are identified by their subject headings rather than by invented paragraph numbers.
Attached form: The Member said that the buildings' attached nature “will not be visible from the street” and that the development would not have an unreasonable amenity impact. In plain English, the Tribunal did not treat attachment itself as a reason to refuse this application. It considered how the design would appear and operate on this lot.
Open-space orientation: The Member wrote that the critical features of secluded private open space were that it be usable, large enough and not unduly overshadowed. In plain English, the Member assessed the spaces by their practical quality, rather than deciding suitability solely from whether they faced north, east or west.
Dwelling 3's entrance: The Member accepted that rear dwellings rarely have an active relationship with the street and found the entrance's position and design acceptable because it would be identifiable from the driveway. In plain English, the assessment accounted for the practical limits on how a dwelling behind another dwelling can address the street.
Parking: The Member described Council's reported two-space direction as “outrageous” and contrasted it with the one-space standard for one- and two-bedroom dwellings identified in the reasons. In plain English, the Member considered the stated planning standard, not Council's higher internal rate, to be the relevant measure in this review.
Landscaping bond: The Member declined to include a landscaping bond, saying such a bond would normally be imposed for a major or large staged development and that the Act's enforcement provisions were sufficient here. In plain English, the permit did not require that particular financial security, although it did require landscaping to be carried out and maintained.
The reasoning is most relevant where a planning dispute concerns a low-rise, multi-dwelling proposal on an established residential lot and the objections relate to the attached form, rear access, private open space, daylight or parking. The decision may be useful when the actual plans show that an attached layout is screened from the street, the buildings are modest in height, setbacks and accessways fit the site context, and the development is not shown to cause unreasonable amenity effects.
The open-space reasoning is relevant where a party argues that a particular orientation, by itself, makes secluded private open space unacceptable. The Member's approach directs attention to usability, area and overshadowing, while also considering the site's particular arrangement. Here, the neighbouring driveway on the eastern side was part of the explanation for placing the spaces on the west.
The parking discussion is relevant to the specific mismatch described in the judgment between Council's reported internal direction and the Clause 55 standard the Member identified. It should not be enlarged into a general conclusion about parking standards in other planning schemes, later versions of Clause 55, or different bedroom configurations. The reasons concern one- and two-bedroom dwellings and this proposal's three garages.
The decision is less directly relevant where the proposal has materially different built form, more substantial height or bulk, materially different site coverage, significant overshadowing, a different access arrangement, or evidence of amenity effects not present here. The Tribunal's assessment depended on the plan details and surrounding context described in the reasons. The judgment does not establish a numerical threshold at which attached development becomes acceptable or unacceptable.
The supplied material does not report any later court or tribunal decisions referring to Morihovitis v Whittlesea CC. It is therefore not possible, on this source alone, to say whether later decisions followed, distinguished, criticised or otherwise treated it.
The only other decision discussed in the reasons is Ikonomidis Reid v Whittlesea CC [2006] VCAT 1796. The Member expressly agreed with the reasoning attributed to Member Naylor about the potential appropriateness of attached buildings where the arrangement uses the site efficiently and the attachment is not visible from the street. That is the precedent relationship visible in the text: Morihovitis followed that reasoning in its assessment.
The judgment's comments on Council's parking direction are forceful, but the source does not show their treatment in subsequent cases. Likewise, it does not provide any appeal history or indicate whether the outcome was reviewed elsewhere. Any account of subsequent treatment would require sources beyond this judgment.
Several matters remain outside the supplied reasons. First, the judgment does not give a continuous, reliable set of numbered paragraphs. It also does not reproduce the endorsed plans in the supplied text. The precise dimensions and configuration of the open spaces, windows, setbacks and driveway therefore cannot be independently assessed from this material alone.
Second, the reasons record the Member's understanding of the Clause 55 parking standard and Council's reported internal direction, but do not reproduce the complete applicable planning scheme provisions or discuss whether other parking requirements could arise in different circumstances. The decision should be read in the setting of the provisions described, rather than as resolving every parking question for multi-dwelling development.
Third, the reasons find that the west-side open spaces were usable, sufficient and not unduly overshadowed, but do not give measurements or a detailed shadow analysis in the text supplied. Similarly, the Member accepted the report that the proposal would achieve a five-star rating, without setting out the report's methodology or testing its assumptions.
Fourth, the reasons state that landscaping enforcement provisions were sufficient and that a bond was not warranted for this development. They do not provide a broader analysis of when a bond may be justified, nor identify the relevant statutory provisions by section number. The permit conditions themselves nevertheless required an approved landscape plan and completion and maintenance of the landscaping.
Finally, the judgment says nothing about later treatment or the present-day wording of the planning scheme. Its findings are tied to the 2008 application, plans, and provisions described in the source. This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
A permit is granted and is directed to be issued for the development of three dwellings on the land at 82 David Street, Lalor, subject to the following conditions:
1. Prior to the endorsement of the plans required under Condition No. 2 of this permit, the permit holder must pay to Council a contribution for drainage (at a rate of $1.90 per square metre of total site area subject to the Consumer Price Index at the time of payment) pursuant to Clause 45.06 of the Whittlesea Planning Scheme.
2. Before the development starts, three copies of a revised plan must be submitted to and approved by the Responsible Authority, showing:
Before the development starts, three copies of a detailed landscape plan prepared by a person suitably qualified or experienced in landscape design must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and show all proposed landscaping, including details of any vegetation to be retained, the location of all new planting, a schedule of plant species and height at maturity, and a maintenance schedule. Species selection is to be to the satisfaction of the Responsible Authority. Any proposed trees must be at an advanced stage of growth when planted.
The development allowed by this permit and shown on the plans and/or schedules endorsed to accompany this permit shall not be amended for any reason without the consent of the Responsible Authority.
Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
Prior to the occupation of the dwellings hereby approved, landscaping works shown on the endorsed plan must be completed and then maintained to the satisfaction of the Responsible Authority.
Prior to the occupation of the dwellings hereby approved, the car parking areas and access ways must be drained, and fully sealed and constructed with asphalt, interlocking paving bricks, coloured concrete or other similar materials to the satisfaction of the Responsible Authority.
In areas set aside for car parking, measures must be taken to the satisfaction of the Responsible Authority to prevent damage to fences or landscaped areas.
Vehicular access to the site must be by way of a vehicle crossing constructed in accordance with Council's Vehicle Crossing Specifications to suit the proposed driveway(s) and the vehicles that will be using the crossing(s). The location, design, and construction of the vehicle crossing(s) must be approved by the Responsible Authority. Any existing unused or redundant crossing(s) must be removed and replaced with concrete kerb, channel and naturestrip to the satisfaction of the Responsible Authority. All vehicle crossing works are to be carried out with Council supervision under a Road Opening Permit.
Before starting any buildings or works, engineering plans showing a properly prepared design (with computations) for the internal drainage and method of disposal of stormwater from all roofed and sealed areas, including the use of an on-site detention system (if required), must be submitted to Council for approval. These internal drainage works must be completed to Council's satisfaction prior to using or occupying any building on the site.
Prior to using or occupying any building on the site, the permit holder is required to construct at no cost to Council, drainage works between the subject site and the Council nominated point of discharge. Such drainage works must be designed by a qualified engineer and submitted to and approved by Council. Computations will also be required to demonstrate that the drainage system will not be overloaded by the new development. Construction of the drainage system must be carried out in accordance with Council specifications and under Council supervision.
Prior to the occupation of the dwellings hereby approved, reticulated (water, sewerage, gas and electricity) services must be constructed and available to the satisfaction of the Responsible Authority.
The permit holder shall be responsible to meet all costs associated with reinstatement and/or alterations to Council or other Public Authority assets deemed necessary by such Authorities as a result of the development. The permit holder shall be responsible for obtaining prior specific written approval for any works involving the alteration of Council or other Public Authority assets.
Prior to occupation of any dwelling on the subject site, a letter box and house number to the satisfaction of the Responsible Authority shall be provided for each dwelling.
At all times during the construction phase of the development, the permit holder shall take measures to ensure that pedestrians are able to use with safety any footpath along the boundaries of the site.
Upon completion of all buildings and works authorised by this permit the permit holder must notify the Responsible Authority of the satisfactory completion of the development and compliance with all relevant conditions.
Any litter generated by building activities on the site shall be collected and stored in an appropriate enclosure which complies with Council's Code of Practice for building/development sites. The enclosures shall be regularly emptied and maintained such that no litter overspills onto adjoining land. Prior to occupation and/or use of the building, all litter shall be completely removed from the site.
In accordance with the Planning and Environment Act 1987 a permit for the development expires if the development or any stage is not completed within four years after the issue of the permit.
Before the permit expires or within three months afterwards, the owner or the occupier of the land to which it applies may ask the Responsible Authority for an extension of time. The Responsible Authority may extend the time within which the development or any stage of it is to be started or the development or any stage of it is to be completed.
Morihovitis
Whittlesea CC [2008] VCAT 551
The responsible authority's decision was set aside. A permit for three dwellings at 82 David Street, Lalor, was directed to be issued subject to the conditions in Appendix A.