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[2003] VCAT 891
appellant. The decision of the Responsible Authority was set aside. A permit was granted for five dwellings at 215 Edward Street, Brunswick, generally in accordance with endorsed plans and subject to 16...
The Tribunal reviewed the council’s refusal of a permit for a multi-dwelling development. The plans were changed from six dwellings to five. The Tribunal considered the street varied enough that two-storey homes were not automatically out of place, and it accepted the rear dwellings in their local context. It did, however, require changes to one dwelling to reduce effects on a neighbour’s kitchen window. It then granted a permit subject to those and other conditions.
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1,829 words · generated 30/09/2026
In Nassour v Moreland CC [2003] VCAT 891, the Victorian Civil and Administrative Tribunal reviewed Moreland City Council’s refusal to grant a planning permit for residential development at 215 Edward Street, Brunswick. The catchwords identify the review as one under section 77 of the (Vic), and the Tribunal’s order directs the Responsible Authority to issue a permit under section 85(1)(b).
1 cited instrument linked from this judgment.
The original application was for six two-storey dwellings. The refusal notice raised concerns about Clause 55, neighbourhood character, the State and Local Planning Policy Frameworks, adjoining and future-resident amenity, design, and alleged overdevelopment ([1]). At the hearing, the applicant sought to substitute amended plans, and the Tribunal allowed the permit application to be amended ([2]). The proposal considered in the reasons was for five dwellings: three in a terrace fronting Edward Street and two attached dwellings towards the rear ([4]).
The Member inspected the site and locality and considered the submissions, photographs, plans and other documents ([2]). The reasons identify three principal concerns: streetscape and backyard amenity, amenity for future residents, and amenity for adjoining residents, particularly the neighbouring property identified as 213 Edward Street ([5]). The Tribunal ultimately set aside the refusal and granted a permit for five dwellings, subject to conditions requiring further plan changes and other controls.
There is an apparent internal numbering inconsistency in the reasons. Paragraph 8 refers to the Rocchi dwelling at 213 Edward Street, paragraph 9 refers to 413 Edward Street, and paragraphs 10–11 and the permit conditions refer to 213 Edward Street. The order also identifies 213 Edward Street. The text supplied does not explain the discrepancy, so it should not be silently resolved.
The Tribunal did not assess neighbourhood character by counting storeys in nearby houses. It described Edward Street as attractive but mixed, with buildings from the late nineteenth and twentieth centuries. Nearby homes tended to be single storey, but the Tribunal also noted that a substantial residential redevelopment was permitted opposite the site on the former Tip Top bakery land ([3]). That broader setting informed its assessment.
The streetscape objections focused on the three two-storey, single-fronted homes proposed at the front and the buildings’ setbacks. The Tribunal rejected the proposition that a two-storey dwelling was inappropriate simply because nearby homes were single storey. It also found single-fronted terrace forms elsewhere in Edward Street and considered the proposed ground- and first-floor setbacks an appropriate transition that sufficiently articulated the scale of the development ([6]). This was a site-specific assessment, not a general finding that two-storey development is suitable in every predominantly single-storey street.
The rear buildings were also assessed in context. The Tribunal considered that the attic-style dwellings had very limited impacts on adjoining properties and that garages and other outbuildings near rear boundaries were not uncommon locally ([7]). It also noted that the site was close to Lygon Street, a public transport corridor near which more intensive housing was encouraged by the Planning and Policy Framework ([7]). Those considerations led it to conclude that concerns sometimes arising from two-storey buildings at the rear of suburban sites were not important in this particular context.
The most focused amenity issue concerned Dwelling 1 and a neighbouring kitchen window. The Tribunal considered the window unusually important because, according to its reasons, the neighbouring dwelling made little use of its northern aspect ([9]). It regarded the window’s oblique outlook to the north and north-east, including access to northern sky and sun, as particularly significant ([10]). The Tribunal therefore treated this neighbouring condition as something the development design should accommodate, notwithstanding that doing so might constrain efficient development of the subject land ([9]).
The Tribunal specified changes intended to protect the window’s outlook and solar access: an additional one-metre setback to the first-floor balcony and northern façade of Dwelling 1; increasing one part of the western-wall setback from 1.4 metres to 1.6 metres; and using translucent glazing for the balcony balustrades and privacy screens, with possible corresponding changes to other balconies for design consistency ([11]). These changes appear as requirements in condition 1(d)–(f) of the order. The Tribunal concluded that, subject to those changes, the development was appropriate medium-density redevelopment ([12]).
The judgment records a particular planning-permit review and its result. It does not identify or analyse earlier court or tribunal decisions, and it does not describe a change in the law. Accordingly, the source supports no account of a doctrinal “before and after” in the sense of a rule being introduced, changed or overruled.
The provisions expressly identified are sections 77 and 85(1)(b) of the Planning and Environment Act 1987 (Vic). The catchwords describe the application as a section 77 review of a refusal to grant a permit. The final order directs the Responsible Authority to issue the permit under section 85(1)(b). The judgment does not set out the full text of either provision or separately interpret their requirements.
The reasons refer to planning-scheme matters, including Clause 55 and the State and Local Planning Policy Framework. The refusal notice had relied on particular Clause 55 objectives and other scheme provisions ([1]). The Member’s reasons then assess the development’s actual setting, built form and effects, rather than restating each objective or responding separately to every refusal ground. The outcome shows that the refusal was set aside after the proposal was amended and conditions imposed; it does not establish that each of the Council’s stated concerns was independently disproved.
The most reusable point in the reasons is methodological and contextual: in this assessment, storey count alone did not determine whether the proposal fitted the street, while a particular neighbouring window’s outlook and solar access warranted specific design changes. The decision does not state that these considerations override other planning controls or apply identically to other sites.
At paragraph 6, the Member states: “a two storey dwelling is [not] inappropriate solely on the basis that other nearby dwellings are single storey.” In plain English, the nearby homes’ height was relevant but not conclusive. The Tribunal considered the character and variety of the street as a whole, the presence of terrace forms, and how the proposed buildings were set back and articulated.
Paragraph 7 explains that concerns about rear two-storey dwellings “are not I think important in this context.” The phrase is expressly contextual. The Tribunal relied on its view of the limited practical impacts, the local presence of rear garages and outbuildings, and the site’s proximity to a public transport corridor where more intensive housing was encouraged. It did not say that rear two-storey buildings are generally acceptable.
At paragraph 9, the Member says site-responsive design required “an accommodation of this site characteristic.” The characteristic was the importance of the adjoining kitchen window, which the reasons describe as having limited access to the northern aspect. In ordinary terms, the development’s design had to account for the effect on that window, rather than treating the effect as incidental.
Paragraph 11 translates that concern into design requirements. The Tribunal considered that specified setbacks and translucent glazing would adequately protect the window’s outlook and solar access. These were not merely observations: the order made them conditions requiring amended plans before development commenced.
Finally, paragraph 12 gives the conclusion: “subject to the design changes discussed,” the redevelopment was appropriate for medium-density development. The qualification matters. The Tribunal’s approval was tied to the changes and the conditions in its order.
The reasoning may be relevant to planning assessments where a proposal is challenged because its height differs from nearby buildings, but the surrounding street has varied building types, periods or forms. In this case, the Tribunal relied on Edward Street’s mixed character and existing terrace forms, rather than treating the nearby single-storey homes as determinative ([3], [6]). Whether another street is comparably varied would depend on its own evidence and planning context.
The decision may also be relevant where development at the rear of a site is opposed because of its height or proximity to rear boundaries. Here, the Tribunal considered the immediate pattern of garages and outbuildings, the practical amenity effects it found, and the site’s relationship to a public transport corridor ([7]). Those facts formed part of the reasons; the decision does not prescribe a general setback or height rule for rear development.
A further relevant pattern is where a neighbouring room or window has a particular dependence on an outlook or source of sunlight. The Tribunal gave weight to the kitchen window’s orientation and importance, then required targeted changes to a nearby dwelling ([9]–[11]). The decision therefore illustrates how a specific amenity concern can lead to modifications rather than refusal of the entire proposal.
In each example, the Tribunal’s reasoning is tied to the evidence before it, including the plans, submissions and site inspection. The judgment does not provide a checklist that determines the result in a different planning application.
The judgment reproduced here contains no discussion of later cases, subsequent judicial treatment, or a later appeal. It cites no other judgments in its reasons. The precedent-relationships field is therefore empty: there is no identified authority in this text to classify as applied, followed, distinguished, overruled or otherwise treated.
The text supports describing the decision’s reasoning and order, but not making a claim about whether later courts or tribunals have adopted, limited or departed from it. Establishing subsequent treatment would require sources beyond the judgment supplied here.
The decision does not explain how the Member assessed each individual Clause 55 objective listed in the refusal notice. The reasons identify the principal issues considered and explain the outcome on streetscape, rear development and the neighbour’s kitchen window, but do not give a separate conclusion for every refusal ground ([1], [5]–[12]).
The reasons also do not reproduce the underlying plans, detailed measurements beyond those stated in paragraph 11 and the order, or the complete planning-policy provisions. As a result, the exact relationship between every design feature and the applicable scheme standards cannot be reconstructed from this text alone.
The apparent reference to 413 Edward Street in paragraph 9, against repeated references to 213 Edward Street elsewhere, remains unresolved in the supplied judgment. The order’s condition refers to the kitchen window of 213 Edward Street, but the discrepancy in the reasons should be noted when citing or extracting the decision.
Finally, the judgment does not state how the permit conditions were later implemented or whether the development proceeded. It records the Tribunal’s decision as at 4 July 2003: the refusal was set aside, a permit was granted for five dwellings, and the Responsible Authority was directed to issue it subject to the stated conditions.
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Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit. Permit Application No. MPS2002/0651. Residential 1 Zone. Clause 55 Two or more dwellings on a lot and residential buildings. Dwellings (Five, two storey dwellings). Site (Frontage 20.5 metres, Area 848 square metres).State and Local Planning Policy Framework. Zone Purposes. Neighbourhood character. Streetscape. Back yard amenity. Landscape. Building envelope. Private open space. Energy efficiency. Overshadowing.. Privacy. Car parking,
The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for five dwellings at 215 Edward Street, Brunswick generally in accordance with the endorsed plans and subject to the following conditions:-
1. Before development commences, three copies of amended plans must be submitted to, and when approved by the Responsible Authority, become the endorsed plans and form part of this permit. These plans must be generally in accordance with the original plans submitted, but must be amended to show:
(a) Elevation plans incorporating the natural ground level, finished ground level, finished floor level and total building heights measured relative to Australian Height Datum (AHD).
(b) The specification of exterior colours and materials;.
(c) Landscaping generally in accordance with the Landscape Plan by Botanix, (Drawing No. 03-389-A) but modified so that plant selection does not result in additional overshadowing or loss of outlook from the kitchen window of 213 Edward Street;
(d) Setting back both the balcony, and the northern façade of Dwelling 1 at first floor level, an additional one metre towards the south;
(e) Increasing the setback of that part of the western wall of Dwelling 1 which is setback 1.4 metres from the west boundary of the site, to 1.6 metres, and;
(f) Using translucent glazing as the material for the construction of the balustrades and privacy screens associated with the balcony for Dwelling 1, and for any other dwelling where required for consistency in the design.
All amendments must be made to the satisfaction of the Responsible Authority.
2. The development as shown on the endorsed plan must not be altered unless with the written consent of the Responsible Authority.
3. Access to the site, any vehicle crossover, and any ancillary road and road drainage works must be constructed in accordance with any requirement of the Responsible Authority.
4. A remote controlled door must be installed at the entrance to each garage.
5. An automatic light must be installed and maintained at the entrance to each vehicle space so that light operates automatically when a vehicle enters or leaves the site.
6. Any plumbing pipe ducting and plant equipment must be concealed from external views. This does not include external guttering or associated rainwater down pipes.
7. Every dwelling must be connected to reticulated water, drainage, sewerage, electricity, gas, and telecommunications to the satisfaction of the relevant service authority.
8. Electricity, gas and water metres must be located to the requirements of service authorities.
9. All stormwater from the land must be collected by an underground pipe drain approved by and to the satisfaction of the Responsible Authority.
10. Electricity supply connections points and fuse boxes must be accessible from common areas to the satisfaction of the Responsible Authority.
11. All telecommunications and power connections (where by means of a cable) and associated infrastructure to the land must be underground to the satisfaction of the Responsible Authority.
12. Prior to the occupation of any dwelling the landscaping shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority. Landscaping established in accordance with the endorsed plans must be maintained to the satisfaction of the Responsible Authority
13. An area constructed with an impervious floor and screened from view from the street must be provided for the storage of garbage bins and recycling containers to the satisfaction of the Responsible Authority.
14. A mailbox containing a newspaper holder must be provided to each premises. The mailbox dimensions, location and height must be consistent with the requirements of Australia Post to the satisfaction of the Responsible Authority.
15. The development must achieve a 4 or 5 star energy rating using the Sustainable Energy Authority's 'First Rate' computer program or equivalent to the satisfaction of the Responsible Authority.
16. This permit expires if the development is not commenced within 24 months from the date of issue or the buildings and works are not completed within 48 months of the date of issue unless either of these dates are extended by the Responsible Authority in writing. An application for extension of time must be lodged in writing before the permit expires or within 3 months after the expiry date of the permit.
The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.
Mr John Cicero, Solicitor. Mr Cicero called Mr Robert Milner, Town Planner as a witness in support of his submissions.
1. This is an application to review the decision of the Responsible Authority to refuse permission for six, two storey dwellings on land in Edward Street, Brunswick. The Responsible Authority issued a Notice of Refusal to Grant a Permit for the following reasons:
1. The proposed development fundamentally fails to satisfy the objectives of Clause 55. In particular:
a. The proposal fails to adequately justify how it is representative of site responsive design which is respectful of neighbourhood character. In particular it fails to meet the overriding objectives of Clause 55.02;
b. The site layout and massing of the proposed development and its resultant impact on neighbourhood character is inappropriate. In particular it fails to meet the overriding objectives of Clause 55.03-1, 55.03-2, 55.03-3, 55.03-5 and 55.03-8;
c. The off site amenity impacts of the proposed development are unacceptable. In particular it fails to meet the overriding objectives of Clause 55.04-1, 55.04-2 and 55.04-6;
d. The on-site amenity provision of the proposed development is unacceptable. In particular it fails to meet the overriding objectives of Clause 55.05-4, 55.05-5 and 55.05-6;
e. The detailed design of the proposed development is unacceptable. In particular it fails to meets the overriding objectives of Clause 55.06-1;
2. The development is not consistent with the City of Moreland's strategic vision for residential development and in particular is not justified against the State and Local Planning Policy Frameworks including the Municipal Strategic Statement.
3. The development does not satisfy the objectives, requirements and assessment guidelines as contained at Clauses 32.01, 55 and 65 of the Moreland Planning Scheme.
4. The proposed development is an overdevelopment of the site."
2. The parties and the witness at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. At the commencement of the hearing Mr Cicero applied to amend the permit application by the substitution of amending plans circulated in accordance with the Tribunal's Practice requirements. The Tribunal ordered the amendment of the permit application in accordance with Mr Cicero's request. The Tribunal inspected the subject site and its locality.
3. Edward Street is an attractive street of mixed character. Dwellings within the street vary in type and style. Architecture of the late 19th century through the 20th century being evident within the street. Dwellings within close proximity to the subject land tend to be single storey. Opposite the site is the former Tip Top bakery site, which has permission for an extensive residential redevelopment.
4. The proposal as amended is to construct five, two storey dwellings on the land. A terrace of three dwellings is proposed fronting onto Edward Street, with a driveway adjacent to the east boundary of the site leading to a centrally located car parking access area. Two more attached two storey dwellings extend across the width of the site (almost boundary to boundary) and adjoin the rear boundary of the site.
5. Having considered the submissions and inspected the site and locality, I am of the view that the important issues in this appeal are:
s Neighbourhood character, both from the perspective of streetscape, and backyard amenity.
s The amenity of adjoining residents, particularly number 213 Edward Street.
6. The streetscape presentation of the development was criticised on the basis that a terrace of three single fronted two storey dwellings was inconsistent with the character of the immediate environs of the site, in which all dwellings are single storey and double fronted. It was also argued that the frontage setbacks, particularly the frontage setback of the proposed first floor level, were inappropriate. I do not agree with these submissions for the following reasons:
s Other than in some very homogenous streetscapes of a type usually protected by a Heritage Overlay, I do not agree that it can be said that a two storey dwelling is inappropriate solely on the basis that other nearby dwellings are single storey. This observation is particularly true in very varied streetscapes like that of Edward Street.
s Single fronted terrace housing forms, are to be found elsewhere in Edward Street, and are not inappropriate in the Edward Street streetscape.
s The frontage setbacks at both ground and first floor level establish an appropriate transition between adjoining buildings, and sufficiently articulate the scale of the proposed two storey buildings.
7. The proposal to construct two, two storey dwellings towards the rear of the site was criticised on the basis of its impact on the amenity of adjoining sites. The attic style dwellings towards the rear of the site in practice have very limited impacts on adjoining properties. These buildings are located in an area where it is not uncommon for there to be garages and other outbuildings constructed adjacent to the rear boundary of sites. The land is close to Lygon Street, a public transport corridor, near to which more intensive housing development is encouraged by the Planning and Policy Framework. The reservations which apply to two storey dwellings at the rear of sites which are sometimes appropriate in suburban settings, are not I think important in this context.
8. In general terms the design has been carefully resolved to minimise amenity impacts on nearby properties. However, there is a particular issue of importance in this case, and it is the impact of proposed Dwelling 1 on the kitchen window of the Rocchi dwelling at 213 Edward Street.,
9. The dwelling at 413 Edward Street takes very little advantage of its northern aspect, and as a consequence this east facing kitchen window is of unusual importance to the internal amenity of this dwelling. In many respects from the perspective of the efficient development of the subject land this is unfortunate, but in my view site responsive design requires an accommodation of this site characteristic.
10. While the general outlook from this windows is of importance, I am satisfied that it is the oblique aspect of the window to the north and north east, that is the aspect to the northern sky and sun, which is of most importance.
11. Both Mr Cicero and Ms Pilatti made recommendations for amendments to the design of Dwelling 1 to address this issue. Having considered these competing proposals, changes to the designs of Dwelling 1 which I think will adequately protect the outlook from and the solar access to the kitchen window of no. 413 Edward Street are:
s Setting back both the balcony, and the northern façade of Dwelling 1 at first floor level, an additional one metre towards the south;
s Increasing the setback of that part of the western wall of Dwelling 1 which is setback 1.4 metres from the west boundary of the site, to 1.6 metres, and;
s Using translucent glazing as the material for the construction of the balustrades and privacy screens associated with the balcony for Dwelling 1, to reduce the visual "weight" of the dwelling, consequential changes might also be required for other balconies.
12. It follows from the above reasons, that subject to the design changes discussed, the proposed redevelopment is an appropriate proposal for a medium density redevelopment of the land.
Nassour
Moreland CC [2003] VCAT 891
The decision of the Responsible Authority was set aside. A permit was granted for five dwellings at 215 Edward Street, Brunswick, generally in accordance with endorsed plans and subject to 16 conditions. The Responsible Authority was directed to issue the permit under section 85(1)(b) of the Planning and Environment Act 1987.