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[2003] VCAT 598
appellant. The decision of the Responsible Authority was set aside. The Tribunal ordered that no planning permit be granted for Application PL01/013251.
1 cited instrument linked from this judgment.
The objectors challenged Council's approval of a multi-dwelling proposal at 9 Amberley Court. VCAT accepted that the design had positive features, but concluded that two houses facing the court on the relatively narrow frontage would look crowded and would not fit the area's character, including the setting of the neighbouring heritage home. The site was also not close to an activity centre. Because changing the front arrangement would require a redesigned proposal and a new application, VCAT set aside Council's decision and refused the permit.
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In Murray & Ors v Manningham CC [2003] VCAT 598, objectors applied to the Victorian Civil and Administrative Tribunal for review of Manningham City Council's decision to grant a planning permit for development at 9 Amberley Court, Bulleen. The review application was made under section 82 of the , as stated in the judgment's description of the application.
The subject land was an irregular lot of approximately 1,859 square metres, with an approximately 17-metre frontage and a depth of approximately 88 metres. It sat at the top of a court bowl and fell 4.3 metres to the west. The surrounding area included predominantly single-storey housing, some split-level development, and Glenfern, a heritage-controlled Victorian home at 10 Amberley Court. The judgment records that the court's common characteristics included face brick, pitched tiled roofs and extensive vegetation in front setbacks (paragraph 4).
The proposal description at paragraph 19 identifies four dwellings, numbered 1 to 4, including one two-storey dwelling and three single-storey dwellings. The case heading's catchwords refer to “Three Single and Two Double Storey Dwellings”, while paragraphs 1 and the proposal summary use a different description. The Tribunal's key assessment focuses on the two dwellings proposed to front the court. The difference in the judgment's descriptions is worth noting rather than attempting to reconcile it from material not provided.
Council had received five objections during the permit process. The concerns recorded included neighbourhood character, the relationship to Glenfern, traffic and parking, privacy, infrastructure and the effects of development on adjoining properties (paragraph 15). Council issued a Notice of Decision to Grant a Permit on 23 September 2002. The objectors lodged their VCAT review application on 14 October 2002. Following a hearing on 24 January 2003, the Tribunal ordered that Council's decision be set aside and that no permit be granted for the application (order; paragraphs 17–18 and 31).
The Tribunal did not reject every aspect of the design. It considered the proposal had merit in responding to the site's slope, retaining some landscaping, orienting the buildings and using face brick and pitched tiled roofs with eaves (paragraphs 20–21). It also accepted that the development would provide housing choice (paragraph 22(b)). Its refusal turned on the frontage arrangement and the location's relationship to the planning objectives for medium-density development.
The central issue was neighbourhood character. The relevant planning framework, as reproduced in the reasons, included the Residential 1 Zone purpose of encouraging residential development that respects neighbourhood character (paragraph 5). The judgment also refers to Clause 55, applicable to development of two or more dwellings on a lot, and to Clause 55.02-1 on neighbourhood character (paragraphs 6 and 26). Clause 21.12 of the Manningham Municipal Strategic Statement included objectives about making a positive contribution to the local area, increasing housing choice, avoiding compromise to neighbourhood character, and responding positively to site features (paragraph 10).
The Tribunal's criticism was specific rather than a general objection to additional housing. It found that two dwellings facing the court, with setbacks of 13 metres and 9 metres, would appear crowded in the setting and out of character. It also found that this arrangement did not respect the adjoining historic Glenfern property (paragraph 22(a)). In assessing the Traditional Grid Area guidance, the Tribunal considered that two buildings in the 17-metre streetscape frontage failed to complement the scale and bulk of the existing dwelling (paragraph 23). It concluded that the proposal did not meet the relevant neighbourhood-character aspect of Clause 55, despite generally meeting other Clause 55 objectives (paragraph 26).
The site context mattered to that assessment. The Tribunal described a court with a mix of development, but with predominant single-storey housing and some split-level homes. It identified Glenfern as the most distinctive feature of the court and described established vegetation and consistent built-form elements (paragraph 4). In that context, the paired front-facing dwellings were found to create an overcrowded and uncharacteristic appearance.
The Tribunal also considered location. Clause 21.12 included an objective of encouraging higher housing densities close to activity centres and major public transport routes (paragraph 10). The Tribunal found that this site was not close to an activity centre. It recorded Council's information that the site was about 380 metres from a bus service and 560 metres from local shops (paragraph 22(d)). It again noted the lack of proximity to an activity centre in its conclusions (paragraph 28). The judgment does not say that distance from an activity centre alone required refusal. It treats location as an additional planning concern.
Other objections did not determine the outcome. The Tribunal did not consider the proposal likely to create unreasonable parking or traffic problems, or additional safety problems in the court. It noted that Council had not raised an infrastructure concern and that permit conditions could address overlooking and privacy impacts (paragraph 29). The decision therefore distinguishes these potentially manageable impacts from the more fundamental frontage design concern.
Finally, the Tribunal considered whether a permit condition could solve the frontage problem. Its view was that requiring one dwelling, rather than two, to front the court would entail redesign and a new application (paragraph 30). It therefore refused the application before it, rather than treating a substantially altered design as something that could be authorised through conditions.
The judgment sets out the planning framework it applied, rather than announcing a broad new legal test. Before the decision, as described in the reasons, the relevant framework included the Residential 1 Zone purpose, State and local planning policy, Clause 55, the Manningham Neighbourhood Character Study, the Building Bulk Guidelines and the Clause 65 decision guidelines. Clause 65 required regard to matters including the State and local planning frameworks, the purpose of the relevant controls, orderly planning and amenity (paragraph 14).
The Tribunal applied that framework to the particular proposal and site. It balanced the objectives of providing housing choice and making efficient use of infrastructure against the objectives of respecting and integrating with neighbourhood character. The proposal had some favourable features and could provide functional accommodation, but the two street-facing buildings were found to fail the neighbourhood-character assessment in this setting (paragraphs 21–27).
After the decision, the order for this application was that Council's decision was set aside and no permit was granted. The judgment does not state that it changed the text of the planning scheme or established a general prohibition on medium-density development in court locations. Nor does the material supplied establish how later courts or tribunals treated the decision. Its reasoning is therefore best understood from the text as a site-specific application of the stated planning objectives, not as evidence of a general rule that two dwellings at a narrow frontage must always be refused.
At paragraph 22(a), the Tribunal said the two dwellings fronting the court “appears crowded” and were “out of character” and “not respectful” of Glenfern. In plain English, the decision-maker thought the proposed street presentation placed too much built form at the front of this particular site and did not respond well to its neighbouring heritage property.
At paragraph 23, the Tribunal said the design failed to complement the existing dwelling's scale and bulk because two buildings occupied the 17-metre frontage. This explains why the frontage dimensions and number of street-facing dwellings were central facts. The objection was not simply about dwelling numbers across the whole site; it was about how the development presented to the court.
At paragraph 24, the Tribunal said it could accept a two-storey dwelling at the front if it occupied approximately the same footprint as the existing dwelling and its upper storey were set back so it did not dominate the street. This was not approval of an alternative proposal. It illustrates the Tribunal's concern with the placement and perceived bulk of buildings at the street frontage.
At paragraph 29, the Tribunal rejected several concerns as decisive: it did not regard the development as likely to impose unreasonable parking, traffic or court-safety problems. It also observed that privacy could be managed through permit conditions. In plain English, those objections were considered, but they were not why the permit was refused.
At paragraph 30, the Tribunal explained that a condition requiring only one dwelling to front the court would require redesign and a new application. This marks the boundary the Tribunal drew between conditions that could manage an impact, such as overlooking, and changes that would substantially alter the proposal being assessed.
The features most directly connected to the Tribunal's reasoning were a relatively narrow street frontage, two dwellings presented to that frontage, and a neighbourhood setting characterised by predominantly single-storey or split-level housing, established vegetation and a nearby heritage dwelling (paragraphs 4, 19, 22–23). The Tribunal treated these features together. The judgment does not isolate any one of them as a standalone rule that automatically determines an application.
The planning context also mattered. The site was in the Residential 1 Zone, and the development was subject to Clause 55 because it involved multiple dwellings on a lot (paragraphs 5–6). The relevant local policy objectives included both housing choice and higher density, and respect for neighbourhood character and integration with the area (paragraph 10). The Tribunal's assessment involved weighing those stated objectives against the design and location before it.
The distance from an activity centre was another relevant feature. The Tribunal recorded that the site was not close to one, while noting its distances from public transport and local shops (paragraphs 22(d) and 28). The reasons do not define a universal distance threshold for “close”, and no such threshold should be inferred from this case alone.
The reasoning may be less directly applicable where the proposal has a materially different frontage layout, where only one building fronts the street, where the surrounding built form has a different character, or where the proposal can address impacts without substantial redesign. Those are comparisons suggested by the facts and reasoning, not additional rules stated by the Tribunal.
The judgment text supplied contains no discussion of later cases and provides no later treatment of this decision. It also contains no cited judicial precedents whose treatment can be traced through the reasons. For that reason, no claim can be made from this source about whether later courts or tribunals followed, distinguished, approved or limited Murray & Ors v Manningham CC.
The decision itself identifies planning instruments and policy material, including the Manningham Planning Scheme, the Draft Neighbourhood Character Study and Building Bulk Guidelines. These are materials the Tribunal considered, not later judicial treatment of its decision. Establishing subsequent treatment would require sources beyond the judgment provided.
The judgment leaves open how its reasoning would apply to other sites with different frontage widths, architectural forms, heritage relationships or activity-centre access. It does not set a numerical frontage threshold at which multiple street-facing dwellings become overcrowded. Nor does it establish a general rule about how far a site may be from an activity centre and still support medium-density development.
The reasons also do not give a detailed account of the design alternatives that might have avoided refusal beyond the observation at paragraph 24 about a two-storey dwelling with a footprint approximately matching the existing dwelling and a recessed upper storey. That observation should not be treated as a finding that such a design would necessarily receive approval.
The internal variation in the proposal descriptions is another textual point: the catchwords refer to three single-storey and two double-storey dwellings, while the body identifies dwellings 1–4 and paragraphs 1 and 19 describe three single-storey and one two-storey dwelling. The Tribunal's operative concern remains clear from paragraphs 22–27, but the supplied text does not explain the variation.
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Planning and Environment List; Application Under Section 82 of the Planning and Environment Act 1987; Three Single and Two Double Storey Dwellings; Development in Bowl of Court; Manningham Planning Scheme
Applicants for Review/Objectors: R. Murray and Ors.
Respondents/Permit Applicants: R. Airey, Paul Shaw & Assoc.
MEDIUM NEUTRAL CITATION: [2003] VCAT 598
The decision of the Responsible Authority is set aside.
It is the order of the Tribunal that no planning permit is granted for Application PL01/013251.
Ms Natasha Swan, Town Planner, appeared for the Responsible Authority.
Ms Kathie Marsan, Ms Ruth Campbell, Ms Gwenda Davies and Mr Ron Murray appeared in person as objectors.
Mr Jason Sumner, Town Planning Consultant, appeared for the permit applicant.
This application is made under Section 82 of the Planning and Environment Act 1987 against the decision of Manningham City Council to grant a permit.
Three single storey and two double storey dwellings
"1. That the structures are grossly inconsistent with the neighbourhood character.
2. They impose on our home area unfairly and adversely.
6. Density requirement is based on the Doncaster Hill Strategy - we are nowhere near it.
8. Total disregard for `Glenfern' (10 Amberley Court Bulleen), a Manningham Heritage Home, classified by the National Trust (Victoria) and listed in The Register of the National Estate.
10. Inability for current infrastructure to cope - water pressure/roads/garbage collection.
11. The disregard of the Council to community objections."
1. This application is one brought by objectors against the decision of Manningham City Council to grant a permit to construct three single storey dwellings and one, two storey dwelling at 9 Amberley Court, Bulleen.
2. The parties presented oral argument generally based on written submissions. The submissions together with the photographs and other material handed up in the course of the review, have been retained on the Tribunal's file.
3. The Tribunal has inspected the site and surrounds.
4. Ms Swan has described the site and surrounds which I adopt:
"The subject land (1859m2) is located at the top of a court bowl. The land is irregular in shape with a frontage of approximately 17 metres and a depth of approximately 88 metres. The land falls 4.3 metres to the west. The land contains a single storey brick dwelling. Vehicle access to the site is via a circular driveway. There are two crossovers onto Amberley Court. There are a number of large trees within the front setback most of which are to be retained. There is a collection of smaller trees located in the southeast corner of the site and are proposed to be removed.
The surrounding development is described as follows:
The land contains a single storey orange brick dwelling with pitched tiled roof. There is a garage located on the east boundary and a brick and cement sheet carport located on the southwest boundary. The dwelling is setback 7.7 metres from Amberley Court. There are several small trees within the front setback and no front fence.
The rear open space contains a large iron garage. There is some large planting between the boundary and the dwelling and also along the common boundary with the subject land
The land contains a significant canopy tree, which hangs into the subject land. There is dense vegetation along the common boundary.
The land contains an original Victorian homestead known as `Glenfern', which is subject to heritage controls. The land is subject to a Heritage Overlay under the Manningham Planning Scheme. There is extensive vegetation within the front setback and adjacent to the subject land. The dwelling is setback 11 metres from Amberley Court. There is no front fencing but a brick wall is located along the northeast boundary.
The land contains a split-level brick dwelling with pitched tiled roof. The dwelling has an undercroft garage and freestanding carport. The dwelling is set back 8.2 metres from Amberley Court. There is a medium height picket fence along the front boundary. There are a number of large canopy trees within the front setback.
The land abuts the rear open space of these dwellings. Generally they are fairly exposed as the subject land is elevated in comparison. Many of the rear open spaces are formally designed with in-ground swimming pools and gazebos. There is no significant vegetation along the common boundary.
Amberley court contains a mix of development. The most distinctive is `Glenfern', the heritage listed Victorian dwelling. The court otherwise has a mix of post war redevelopment. The predominant housing is single storey with some split-level development due to land slope. There is no modern redevelopment within the court. The common elements within the street are the use of face brick, pitched tiled roofs and extensive vegetation within the front setbacks."
5. As previously stated the land is located within a Residential 1 Zone under the Manningham Planning Scheme. The purpose of the zone includes:
"* To implement State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
* To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.
* To encourage residential development that respects the neighbourhood character."
6. The development of two or more dwellings on a lot must meet the requirements of Clause 55 of the Scheme.
"In planning for urban growth planning authorities should encourage consolidation of existing urban areas while respecting neighbourhood character. Planning authorities should encourage higher density and mixed use development near public transport routes."
"To encourage the development of well-designed medium density housing which:
9. Clause 21.03 notes that future housing need and residential amenity are critical land use issues. There is a trend to smaller household size.
10. Clause 21.12 - Established Urban Areas sets a number of key objectives for the provision of housing in established urban areas of Manningham. These key objectives are as follows:
"* To ensure that higher density developments are designed and landscaped to make a positive contribution to the local area;
* To ensure that housing choice, quality and diversity will be increased to better meet the needs of the local community and reflect demographic changes;
* To support appropriate developments, which do not compromise neighbourhood character and provide accessibility and affordability to enable residents to stay within their local neighbourhood or municipality;
* To encourage higher housing densities which achieve a more efficient use of urban infrastructure in locations close to activity centres and major public transport routes and which stabilises population levels in the municipality;
* To encourage subdivision and development which responds positively to site features, integrates well with the neighbourhood, provides a functional environment and achieves energy efficient and environmentally sensitive layouts."
11. The MSS refers to the Council's Draft Neighbourhood Character Study and Building Bulk Guidelines.
12. The subject site is within a "Traditional Grid Area" under the Neighbourhood Character Study and the study provides elements and techniques so that assessment can be made in relation to the suitability of projects.
13. These provide a series of design suggestions for new developments.
14. Regard must be had to Clause 65, which sets out various matters for consideration, including:
"* The State Planning Policy Framework and the Local Planning Policy Framework;
* The purpose of the zone, overlay or other provision;
15. 31 December 2001 Application for Planning Permit lodged with the Responsible Authority. The application was advertised and five objections were received with the following grounds of objection, summarised by Council as:
"* Building on boundary adjacent to 10 Amberley Court inappropriate;
* Buildings out of context with the heritage dwelling;
* Buildings not in keeping with general character of the area;
* Increase in traffic and demand for on street parking;
* Decrease in visual and acoustic privacy due to increase in people;
* Increase in traffic will impact on Willow Bend which cannot support it;
* Headlights from exiting cars will illuminate bedrooms opposite;
* Site is not close to an activity centre and constitutes an overdevelopment;
16. 9 August 2002 Amended plans were received from the applicant which were re-advertised.
17. 23 September 2002 A Notice of Decision to Grant a Permit was issued by Council.
18. 14 October 2002 VCAT received the application for review.
* Dwelling 1 comprises formal and informal living, kitchen, bedroom with en suite and laundry at ground floor and two bedrooms with bathroom at first floor. The dwelling has a ground floor area of 100.5 square metres and a first floor area of 52.3 square metres. A double garage is attached to the western edge of the dwelling. The dwelling at ground floor is setback 13 metres from Amberley Court and between 2.8 and 4 metres from the northeastern boundary. At first floor the dwelling is setback 13 metres from Amberley Court and 5.15 metres from the northeastern boundary. The dwelling has a maximum wall height of 5.6 metres and a maximum overall height of 7 metres.
* The dwelling has 42 square metres of private open space located north of the dwelling. Additional open space is provided within the front setback. Access to the garage is from the common driveway.
* Dwelling 2 is single storey and comprises formal and informal living, kitchen, three bedrooms one with en-suite, bathroom, laundry and double garage. The dwelling has a floor area of 149 square metres. The dwelling is setback 9 metres from Amberley Court, 1.2 metres from the southeastern boundary and 2.5 metres from the southwestern boundary. The dwelling has a maximum wall height of 3.5 metres and a maximum overall height of 5.5 metres.
* The dwelling has 49 square metres of private open space located to the north of the dwelling adjacent to the common driveway. Additional open space is provided with the front setback. The double garage is accessed from the common driveway.
* Dwelling 3 is single storey and comprises formal and informal living, kitchen, two bedrooms one with walk-in-robe, bathroom, laundry and single garage. The dwelling has a floor area of 120.5 square metres. The dwelling is setback between 1.5 metres and 4.75 metres from the north boundary, with the single garage located on the boundary and 7.5 metres from the southern boundary. The dwelling has a maximum wall height of 3.1 metres and a maximum overall height of 5 metres.
* The dwelling has 40 square metres open space located north of the dwelling. Access to the single garage is from the common driveway. A visitor space can also be accommodated in tandem in front of the garage.
* Dwelling 4 is single storey and comprises formal and informal living, kitchen, two bedrooms one with en-suite and walk-in robe, bathroom, laundry and double garage. The dwelling has a floor area of 131.5 square metres. The dwelling is set back between 3.75 and 2.5 metres from the northern boundary and 2.5 metres from the southern boundary. The dwelling has a maximum wall height of 4 metres and a maximum overall height of 5.6 metres.
* The dwelling has 114 square metres of open space located in a courtyard north of the dwelling and a large triangle at the western end of the site. Access to the double garage is via the common driveway. A visitor space can also be accommodated in tandem in front of the garage.
The dwellings are to be constructed using face brick at ground floor and render at first floor for Dwelling 1. The dwellings have pitched tiled roofs, which incorporate eaves. Dwelling 1 has a large verandah at the front of the dwelling. An additional visitor car space is located adjacent to Dwelling 2 off the common driveway. There is no proposed front fencing.
Part of the proposal is the removal of several small trees and shrubs, predominantly fruit trees, from the rear of the site and along the southern boundary, adjacent to 8 Amberley Court. It is proposed to retain four lage trees along the frontage of land, being; two Lemon Scented Gums, approximately 15m high with a canopy spread of 9m, one Lemon Scented Gum, approximately 13 metres high with a canopy width of 8 metres and one Weeping Scotch Elm, approximately 5 metres high with a canopy width of 10 metres.
The development has an overall site coverage of 35% and a permeable surface of 46.5%."
20. The Tribunal agrees with Council that insofar as the development responds to the slope of the site by stepping the buildings down the land, the development has merit.
21. Likewise the proposed retention of some existing landscaping, the proposed orientation of the buildings, the incorporation of face brickwork and pitched (terracotta) tiled roofs with eaves overhangs indicate a proposal which on the face of it will provide pleasant accommodation for future occupants and integrate reasonably with the neighbourhood.
22. On comparing the proposal against the key objectives outlined in Clause 21.12 - "Established Urban Areas", the Tribunal finds as follows:
(a) The decision to have two dwellings fronting the court, one with 13m setback and the other with 9m setback appears crowded in the context of the court and out of character with neighbourhood and not respectful of the adjoining historic Glenfern at 10 Amberley Court. Consequently the proposal does not make the positive contribution sought by the first dot point objective.
(b) The proposal provides increased "housing choice, quality and diversity".
(c) While the proposal does compromise neighbourhood character with respect to the two dwellings fronting the court with such a limited frontage, the remainder of the development could well "provide accessibility and affordability to enable residents to stay within their local neighbourhood".
(d) While the proposal encourages higher housing densities achieving more efficient use of urban infrastructure, the location cannot be considered to be in close proximity to an activity centre which would encourage higher densities. Council notes that the site is approximately 380m from public transport, which it is understood is a bus that travels to Doncaster's Westfield Shopping Town and 560m from local shops.
(e) Notwithstanding the Tribunal's concerns with the two dwellings facing the court which inhibits integration of the proposal with the neighbourhood, the proposal could provide a functional environment for future occupants, be energy efficient and environmentally sensitive.
23. With regard to the Draft Neighbourhood Character Study - "Traditional Grid Area", the Tribunal generally agrees with Council's assessment but finds that the "design approach" fails to "complement the scale and bulk of the existing dwelling" in that two buildings occur in a streetscape in a 17m frontage which in this court is out of character.
24. The Tribunal could accept a two storey dwelling fronting the court occupying approximately the same footprint as the existing dwelling on the site provided the upper storey was set back so that the uncharacteristic second storey did not dominate the street.
25. With regard to the Building Bulk Guidelines the Tribunal finds adequate compliance.
26. The Tribunal agrees with Council that the proposal generally meets the objectives of Clause 55, however, not in regard to Clause 55.02-1 Neighbourhood Character where the two dwellings fronting the court produce an overcrowded and uncharacteristic appearance in the neighbourhood setting.
27. The Tribunal has noted the objectors' concerns and finds that there is the above problem with the proposal with respect to neighbourhood character, but only with respect to the two dwellings fronting the court.
28. In addition the development is not in a location close to an activity centre.
29. The Tribunal does not regard the development as likely to impose unreasonable parking and traffic problems or additional lack of safety in the court. Council has not raised concerns with the adequacy of infrastructure so that residents could address Council with respect to this matter. Conditions could be applied in any permit that may issue which would inhibit overlooking and loss of privacy of adjoining owners.
30. In summary, apart from the apparently inappropriate location for a medium density development, any conditions on a permit requiring one dwelling fronting the court would entail a re-design of the proposal which would require a new application.
31. The Tribunal therefore refuses to grant a permit for the present application and has prepared an order accordingly.
Murray & Ors
Manningham CC [2003] VCAT 598
The decision of the Responsible Authority was set aside. The Tribunal ordered that no planning permit be granted for Application PL01/013251.