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[2001] VCAT 502
appellant. Tribunal allowed the application for review, set aside the Responsible Authority's refusal, and directed the Responsible Authority to issue a permit for a second dwelling at 871 Doncaster Road...
VCAT allowed NGB's review of Manningham Council's refusal to permit a second dwelling at 871 Doncaster Road. The Tribunal accepted amended plans admitted under s.127 VCAT Act, applied relevant planning policy and the Good Design Guide, and found the design and access arrangements acceptable subject to conditions. The Tribunal concluded that the gun‑barrel access and paved areas did not justify refusal given concealment by the front fence and that retention of the existing dwelling could be acceptable and contribute to affordable housing. The Tribunal set aside Council's refusal and directed a permit be issued with detailed conditions.
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1,750 words · generated 14/07/2026
NGB Developments applied to Manningham City Council for a planning permit to construct a second dwelling at 871 Doncaster Road, Doncaster (Permit No. 11472). The original application envisaged a rear unit; subsequent amended plans (substituted before the Tribunal hearing) described a two‑storey dwelling to the rear of an existing single‑storey dwelling (Reasons, [5], [6], [13]-[14]).
1 cited instrument linked from this judgment.
Council refused the application on 23 October 2000. The reasons recorded concerns about neighbourhood character (bulk and mass, setbacks), the double storey form, vehicle manoeuvring (inability to exit the site in a forward direction), non‑compliance of the accessway with the Good Design Guide (E8.T4 and E8.T14) and inadequate landscaping along a gun‑barrel accessway (Reasons, [8]). The application had been advertised and the single objection lodged was later withdrawn subject to conditions (Reasons, [20]-[21]).
NGB sought a review under s.77 of the Planning and Environment Act 1987. At the VCAT hearing the applicant sought and obtained leave to substitute further amended plans. The Tribunal (Member Michael Read) directed that the amended plans be substituted under s.127 of the VCAT Act, with no objection from Council (Reasons, [2]-[4]). After hearing submissions and examining the materials, the Tribunal allowed the review and directed the Responsible Authority to issue a permit subject to detailed conditions (Order and Reasons, [28]).
The Tribunal’s decision is based on a statutory and contextual assessment. The Tribunal framed its task by reference to s.84B of the Planning and Environment Act 1987, the matters the Tribunal must take into account in a review, and the obligation to have regard to matters the Responsible Authority could have considered under s.60 (Reasons, [17]-[18]). The Tribunal identified the relevant planning controls and policies including the State Planning Policy Framework (SPPF) (notably Clause 16.02 on medium density housing), the Municipal Strategic Statement (MSS), the Residential 1 zone controls (including Clause 52.04 requiring a site analysis and design response), the Design and Development Overlay (DDO1), Clause 52.29 (land adjacent to a Road Zone, Category 1) and the Good Design Guide (Reasons, [19]).
On the merits, the Tribunal accepted several points made by Council: the site posed constraints because an existing house was being retained; that retention limited the design envelope and required compromises. The Tribunal nonetheless concluded the amended plans produced a reasonable design response and met applicable policy outcomes (Reasons, [24]-[27]). Specific findings included:
The gun‑barrel driveway and extent of paving were not matters that, in the circumstances, made the design unacceptable. The Tribunal noted the site is substantially concealed from the road by a high front fence and therefore off‑site visual impact on the public realm would be minimal; the important landscaping contribution to the wider area would be canopy trees, which could be secured by conditions (Reasons, [27]). The Tribunal therefore did not accept Council's submission that the gun‑barrel form was a fatal flaw.
Issues of access width and internal room shape (an unusually shaped bedroom) were acceptable compromises given the overall site layout and were remedied to a reasonable degree by the amended plans (Reasons, [27]).
Retention of the existing dwelling was not an automatic negative. The Tribunal observed, as a planning consideration, that retaining older dwellings can preserve lower‑cost housing stock and so can serve an objective of affordability (an observation the Tribunal characterised as a relevant policy point) (Reasons, [27]).
Finally, because the amended design addressed the policy requirements and Council’s concerns could be managed by conditions (including landscaping, carport configuration and acoustic glazing), the Tribunal considered it appropriate to direct that a permit issue with a detailed suite of conditions (Order and Directions).
Before this decision, the familiar legal framework required a Tribunal reviewing a planning refusal to undertake the statutory balancing exercise under s.84B and consider any matters the Responsible Authority could have taken into account. This decision applies those statutory requirements in a standard way. It also illustrates two procedural points that practising lawyers should note:
Substitution of amended plans at a VCAT hearing: The Tribunal exercised its power under s.127 of the VCAT Act to substitute amended plans where no party objected, thereby permitting the Tribunal to determine the application on the revised design (Reasons, [2]-[4]). That is a pragmatic application of Tribunal practice and confirms that where amended plans address documentary and procedural prerequisites, the Tribunal will receive them and proceed.
Use of conditions to secure mitigation: The decision exemplifies the Tribunal’s routine willingness to allow developments that are otherwise borderline by directing conditions that tighten aspects of the consent (detailed conditions in the Order and Directions). It reinforces the principle that refusal is not the only means of addressing shortcomings.
After the decision, the practical effect is limited to the immediate parties and the particular facts. The case does not create a new legal principle, but it is a useful authority on three points: (1) the acceptability of gun‑barrel access in contexts where the site is concealed and landscaping can be secured; (2) the acceptability of retaining an existing dwelling where policy and design outcomes are otherwise satisfied (including a policy observation about affordable housing); and (3) the Tribunal's procedural flexibility to admit substituted plans.
"I directed that the amended plans be substituted as requested, pursuant to Section 127 of the Victorian Civil and Administrative Tribunal Act 1998." (Reasons, [4])
"Section.84B(2) also requires the Tribunal to take into account any matters which the Responsible Authority could have taken into account, for example, under s.60 of the Planning and Environment Act." (Reasons, [18])
"The gun barrel driveway is not a landscaping issue for the wider neighbourhood because the high front fence will effectively conceal all lower landscaping and site layout from public scrutiny." (Reasons, [27])
"Retention of existing dwellings can also be seen as part of a response to the objective of providing affordable housing." (Reasons, [27])
"For the above reasons, this Application is allowed subject to conditions." (Reasons, [28])
This decision is most relevant where a proposed medium‑density development:
Involves retention of an existing dwelling and construction of a new unit at the rear of the lot, especially where the retention limits design options (Reasons, [24]-[27]).
Presents a 'gun‑barrel' or narrow accessway to a rear unit, and the question is whether that access arrangement unacceptably affects neighbourhood character or fails landscaping expectations (Reasons, [27]).
Involves a site largely concealed from the street by a high front fence or other feature, so that off‑site visual impacts are limited (Reasons, [27]).
Requires pragmatic compromises in internal room shapes or access widths to meet car parking and turning requirements (Reasons, [27]).
Seeks review after Council refusal where amended plans address council concerns and may be substituted at the Tribunal hearing (Reasons, [2]-[4]).
If a proposal shares these characteristics, practitioners can rely on the reasoning here: the Tribunal will balance policy aims, not adopt a categorical refusal simply because a gun‑barrel driveway exists or an older dwelling is retained. The decision shows the Tribunal will examine concealment, landscaping potential, parking/turning functionality, and the possibility of remedial conditions.
This is a single VCAT member decision; the judgment does not cite higher‑court authority nor is it a higher‑court pronouncement binding on other decision‑makers. It therefore functions as persuasive guidance rather than binding precedent. The decision’s practical utility lies in demonstrating how the Tribunal applies s.84B, considers substituted plans under s.127 VCAT Act, and uses conditions to achieve acceptable design outcomes. Readers should treat it as an example of Tribunal reasoning rather than a source of new legal doctrine.
(As a note, the judgment contains no citations to appellate case law that would indicate modification of legal principle; the decision applies planning controls and policy rather than novel legal rules.)
Weight to affordability argument: The Tribunal observed that retaining existing dwellings can support affordable housing objectives (Reasons, [27]). That policy point was influential in the balancing exercise here, but the judgment does not develop a clear test for when affordability should outweigh design or neighbourhood character concerns. Future cases may need to clarify the evidentiary threshold and weight to be given to such social‑policy considerations.
Quantifying acceptable concealment: The Tribunal relied on concealment by a high front fence to mitigate concerns about the gun‑barrel driveway (Reasons, [27]). This remains a fact‑sensitive assessment. Subsequent decisions may be required to describe measurable criteria (for example, fence height, sightlines, or landscaping) to guide consistent outcomes.
Limits of substituted plans practice: The Tribunal admitted amended plans under s.127 because no party objected (Reasons, [2]-[4]). The judgment does not discuss the limits of that practice where objectors exist or where substituted plans introduce materially different impacts. Future procedural guidance could clarify when substituted plans should be refused or when an adjournment is necessary.
Use of conditions versus design refusal: The decision imposed a detailed set of conditions to address multiple concerns. The boundary between appropriate use of conditions and when a design compromise should lead to refusal is inherently discretionary. More detailed appellate guidance would be helpful to delineate when conditions are insufficient and refusal is required.
Conclusion
NGB Developments v Manningham CC [2001] VCAT 502 is a pragmatic VCAT decision applying statutory planning obligations, admitting amended plans, balancing neighbourhood character and policy objectives, and relying on conditions to mitigate site‑specific shortcomings. It is a useful authority for practitioners dealing with rear‑unit developments, gun‑barrel accesses and retention of existing dwellings, but its precedential weight is persuasive and fact‑specific.
Planning; Planning and Environment Act 1987 (Vic), Residential 1 zone; Good Design Guide;
The Application for Review is allowed. The order of the Tribunal is that the decision of the Responsible Authority is set aside.
The Responsible Authority is directed to issue a permit subject to the following conditions and in accordance with the direction set out below.
The Responsible Authority is directed under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987 to issue a permit which allows the use and development of a second dwelling on the land at 871 Doncaster Road, Doncaster, in accordance with the endorsed plans and subject to the following conditions:-
1. The amended plans submitted to Council on the 18 January 2001 must be modified to the satisfaction of the Responsible Authority to show:
a) Unit 2's carport to include the following features -
- ensure that no panels, doors or walls are placed over the open ends of the carport;
b) a plan notation indicating the following external improvements to be made to Unit 1 -
c) The driveway width to be a minimum of 3 metres to comply with E8.T4 of the Good Design Guide;
d) South facing window for Unit 1 to have a sill height of 1.4 metre to comply with E8.T14 of the Good Design Guide and to have glass that will provide an acceptable acoustic transmission loss;
e) a schedule of building finishes and colours to ensure reasonable compatibility between the units;
f) plan notations indicating which side boundary fences are to be either repaired or replaced; the northern boundary fence to be replaced
g) the provision of a treated pine lattice screen on a sturdy frame and not less than 0.6m in height above the northern, eastern and western boundary fences;
h) service yard pathways from the rear entries of units to garage doorways and clothesline facilities;
i) Unit 1's single carport must have a minimum width of 3.0m, allowing for any internal piers;
j) Unit 2's double carport must have a minimum width of 5.5 m, allowing for any internal piers;
k) plan notations indicating the treatment of west facing habitable room windows either with external blinds/screens, solar efficient glazing or appropriately located shade planting;
m) the finished surface of the driveway and external car parking spaces in dark coloured concrete, bitumen or pavers;
and once approved, such plan will be the endorsed plan.
2. The layout of the site and the size/levels of buildings and works shown on the endorsed plan must not be modified for any reason, without the written consent of the Responsible Authority.
3. There must be a minimum of 600 mm clearance between the kerb return of the widened crossing and the bus shelter
4. Stormwater must not be discharged from the subject land other than by means of drained to the legal point of discharge. The drainage system within the development must be designed and constructed to the requirements and satisfaction of the relevant Building Surveyor. A connection to Council maintained assets must not be constructed unless a Miscellaneous Works Permit is first obtained from the Responsible Authority.
5. The system of stormwater management must be designed, to limit the Permissible Site Discharge (PSD) to that applicable to the site coverage of 35 percent of hard surface area or to the pre-existing hard surface area if the pre-existing hard surface area is greater than 35 percent to accommodate the discharge from a 1 in 10 year storm or otherwise to Council's discretion. The detention system must be maintained thereafter by the owner in accordance with approved construction plans. Construction plans for the detention storage works described above must be submitted to and approved by the Responsible Authority prior to the commencement of any buildings or works authorised by this permit.
6. Driveways and parking areas must be constructed to accord with the endorsed plan.
7. Car spaces must not be used for any purpose other than the parking of vehicles.
8. Prior to the issue of a building permit the owner must obtain the consents of all relevant authorities for any buildings or works over the easement including paving, fences and landscaping, to the satisfaction of the Responsible Authority and relevant authority.
9. The owner must accept all reinstatement costs in carrying out repairs to any buildings, works or landscaping over the easements should such buildings, works or landscaping be disturbed by any works undertaken by Council in the future.
10. Any paving materials placed over the easement must either be removable or sawcuts or construction joints must be placed in the pavement over the easement to assist in any future reinstatement, to the satisfaction of the Responsible Authority.
11. Within 30 days of the issue of a building permit, a landscaping plan prepared by a landscape architect or a person of approved competence showing species, locations, approximate height and spread of proposed planting and the retention of existing trees and shrubs, where appropriate or as directed by any other condition of this Permit, must be submitted to the Responsible Authority for approval. The plan must incorporate -
- a row of Cut Leaf Plane Platanus orientalis 'digitate' within the front setback; and
- screen planting along the northern boundary (1.5 metres in height at the time of planting).
12. Landscaped areas must be fully planted and mulched or grassed generally in accordance with the approved plan prior to the completion of the development and to the satisfaction of the Responsible Authority.
13. Prior to the release of the endorsed plan, a $1000 cash bond or bank guarantee must be lodged with the Responsible Authority to ensure the completion and maintenance of landscaped areas and such bond or bank guarantee will only be refunded or discharged after a period of 13 weeks from the completion of all works, provided the landscaped areas are being maintained to the satisfaction of the Responsible Authority.
14. External lighting must be designed so as to cause no loss of amenity to residents of adjoining properties to the satisfaction of the Responsible Authority.
15. Buildings, engineering works, fences and landscaped areas must be maintained to the satisfaction of the Responsible Authority.
16. Garbage containers must be stored out of general view to the satisfaction of the Responsible Authority.
17. All clotheslines must be positioned so as not to be visible from any nearby street.
(a) the development does not start within two (2) years of the date of the issue of this permit; and
(b) is not completed within two (2) years of the date this development was started and
(c) the time within which the development is to be commenced or completed may, on application made before or within the three months after the expiry of the time specified, be extended by the Responsible Authority and where the time is extended after the permit has lapsed the extension will operate to revive the permit as from the date it expired.
Mr. Kieran Smyth, town planner, appeared for Manningham City Council.
Mr. Greg Buchanan, town planner, appeared for NGB Developments Pty Ltd.
1. Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit to construct a second dwelling at 871 Doncaster Road, Doncaster.
2. At the commencement of the hearing, Mr. Buchanan requested permission to substitute amending plans in lieu of the permit application plans. This request had been foreshadowed in a letter to the Tribunal dated 17th January 2001. A copy of this letter had been sent to the City of Manningham.
4. I directed that the amended plans be substituted as requested, pursuant to Section 127 of the Victorian Civil and Administrative Tribunal Act 1998.
6. The permit application described the proposal as "proposed single storey unit at the rear of the existing dwelling". The application plans, as earlier amended before the application was advertise, together with the further-amended plans, reveal that the proposal consists of a two-storeyed dwelling to the rear of the existing single storeyed dwelling.
PLANNING SCHEME AND ZONING/OVERLAY/SCHEDULE CONTROLS
7. The land is situated in the Manningham Planning Scheme. Within that scheme, it is located in the Residential 1 zone and the Design and Development Overlay (DDO1)
* The development is not sympathetic to the neighbourhood character given the bulk and mass of the proposed units and the proposed setbacks.
* The double storey form does not compliment the scale, size and bulk of development on surrounding land
* Vehicles cannot enter and exit the site from Doncaster Road in forward direction, which is contrary to Cluse 43.04 of thee Manningham Planning Scheme.
* The accessway for Unit 2 does not comply with E8.T4 of the Good Design Guide.
* The accessway for Unit 2 does not comply with E8.T14 of the Good Design Guide.
* The `gun barrel' accessway does not have adequate landscaping provision.
9. The grounds of the application for review are as follows:
* The development is in keeping with the neighbourhood character
* The design of the rear dwelling, and siting, respects development on surrounding land
* Vehicle access arrangements, and landscaping, is appropriate and meets the requirements of the Good Design Guide.
10. The land is situated at 871 Doncaster Road, Doncaster.
12. I have adopted the description of the site and its locality, as provided by Mr. Smyth, as appropriate.
"The site is situated on the northern side of Doncaster Road, approximately 100 metres west of the intersection of Doncaster Road and Norman Street. ......
The site is developed with a single storey brick dwelling. A single garage and driveway abuts the eastern boundary. Both the front and rear yards contain no significant vegetation. There is an existing 2 metre high metal front fence, which has become displaced in some areas. All other boundary fencing is in good condition.
Land to the east is developed with a single storey brick dwelling, which is setback 7.5 metres from Doncaster Road. Vehicle access to this property is via a single cross-over and driveway to the west. There is a carport setback 1 metre from the common boundary. There is some trees and shrubs planted along the common boundary, which provides a small buffer to the dwellings rear yard.
Land to the west is developed with a single storey brick dwelling, which is setback 9.0 metres from Doncaster Road. Vehicle access to this property is via a shared crossover and driveway to the east. There is a garage built to the common boundary. There is a mature tree located north of the dwelling setback 1.2 metre from the shared boundary, some of the trees branches overhanging the site.
Land opposite to the south comprises the National Bus Company depot, petrol station, office building and Jackson Court shopping centre, single dwellings and unit developments.
This section of Doncaster Road is developed with a mix of uses including unit development, service stations, a restaurant and offices. There is no substantive character to this section of Doncaster Road."
13. The proposed development was described by Mr. Smyth:
"It is proposed to retain the existing dwelling and construct a double storey dwelling at the rear. Both dwellings contain 3 bedrooms (Unit 2 has 2 bedrooms with the substitute plans), kitchen, family rooms, living/dinning rooms, utility areas and carports.
Building floor areas represent total site coverage of 37.4%. Floor area details are presented below:
- metres to the eastern boundary (excluding carport).
- 4.0 metres to the northern boundary (excluding carport); and
Both units will have carports that are to be accessed via the existing vehicle crossings, located on the western boundary. There is 2 metre front fence proposed, which will replace the existing 2 metre high metal fence. Open space areas are orientated towards the north and are accessed off the units living areas.
14. As discussed, Unit 1 is an existing, single storeyed dwelling. Under the proposed layout, it will have an open areas of 64.5 square metres and a single car port. Unit 2 will be two storeyed, with 61.7 square metres of open space and a double car port.
15. Other aspects of the design which must be noted are:
* both dwellings are to be provided with two parking spaces and provision to allow vehicles to turn before exiting the site in a forwards direction
* the rear dwelling is designed so that it has a single storeyed wall facing the property to the east, the roof having continuous pitch facing this direction. The two storeyed elevation facing west is well set back from the western boundary.
16. During the course of the hearing I was provided with a submissions, including photographs, from the two parties that appeared at this hearing.
MATTERS FOR CONSIDERATION UNDER PLANNING CONTROLS AND POLICIES
17. The Planning and Environment Act 1987 (Vic),s 84B sets out the matters the tribunal must take into account in determining an Application for Review.
18. Section.84B(2) also requires the Tribunal to take into account any matters which the Responsible Authority could have taken into account, for example, under s.60 of the Planning and Environment Act 1987.
19. Planning policy and controls that are relevant to this application for review include the following:
* various sections of the SPPF, including Clause 16.02 (Medium Density Housing)
* the MSS, which encourages higher density housing in close proximity to transport routes and activity centres; the usual requirements that new medium-density housing is to be well designed
* the Residential 1 zone, that requires a planning permit for the construction of a second dwelling on a lot, also requires that an application be accompanied by a site analysis and a design response (Clause 52.04) and application of the Good Design Guide
* Clause 52.29 (Land Adjacent to a Road Zone, Category 1) which requires a permit to create new access to such a road
* Council's Building Bulk Guidelines and draft Neighbourhood Character Study.
20. The permit application was lodged on the 4th May 2000. Council requested and received further information and, following advice from Council regarding areas of concern with the design, the permit applicant amended the plans. The application was advertised on the 8th August 2000 by way of an on-site sign and mailing notices to owners and occupiers of abutting properties.
21. One objection was lodged and later withdrawn (letter on file dated 23rd January 2001), subject to a number of conditions relating to a requirement for a new 2.0 metre high paling fence, screen planting along the northern boundary and obscure glazing to an upper level bathroom window.
22. The application was referred to a number of internal Council service departments and to Vic Roads. No department or VicRoads objected to or qualified the proposal.
23. The application was refused by Council on the 23rd October 2000.
24. Council's submission pointed out that the proposed development, in its amended form, complies with various Council policies. It is in the Compact Residential Area and complies with the specified density; car parking is in accordance with Council's Multi-Dwelling Density Policy; the reduced extent of the second floor area complies with the draft Neighbourhood Character Study.
25. At the end of his submission, Mr. Smyth stated
_"even with the substitute plans there are still aspects of the proposal which are inappropriate. It is maintained that the retention of the existing dwelling limits the amount of space available to develop the rear of the site.
This constraint has resulted in the following aspects of the design which Council (is) still unsatisfied with_
- and the minimal width provided for the accessway.
Should the applicant wish to develop this site for units, it is suggested that (it) consider constructing two new units rather than retaining the existing dwelling."
26. Mr. Buchanan rebutted these arguments in his written submission.
27. In reviewing the amended plans and the two submissions, I make the following comments.
* The gun barrel driveway is not a landscaping issue for the wider neighbourhood because the high front fence will effectively conceal all lower landscaping and site layout from public scrutiny. The only contribution that any on-site landscaping will make to the wider area will be through the provision of trees with spreading canopies. The applicant's intention appears to be to retain the existing vegetation where possible.
In this context, there can be no objection to the `gun barrel' effect. There appears reasonable opportunity to add additional taller trees, or to substituted these for existing vegetation, if appropriate. I suspect that, in practice, it would be feasible to provide additional landscaping adjoining the rear unit, but that is a matter Council can address.
* The same general issues apply to Mr. Smythe's disappointment with the extent of paved surfaces. I agree that it is always desirable to limit paved surfaces, but in this case, given the concealment of the property for the road, the issue is one of providing some opportunities for larger vegetation - refer comments above.
* The amended plans have, at the cost of creating an unusually shaped bedroom, provided a reasonable solution to the requirement that there be adequate width along the accessway to the rear unit.
* The other general point made by Mr. Smythe is that the retention of the existing dwelling has compromised the opportunity to achieve good design outcomes. That is certainly true. Part of the compromise arises from the fact that siting of the existing dwelling did not allow fort the possibility of a second. However, there is a further compromise in the fact that the first dwelling was laid out to design standards that do not meet current design criteria, eg. the lack of direct connection between living room and secluded open space area; also the under-provision of access to northern light.
On the other hand, although no submission was made in respect to the following matter, it seems to me that retention of existing dwellings can also be seen as part of a response to the objective of providing affordable housing. New dwellings are necessarily the most expensive buildings, so the retention of older, depreciated dwellings of reasonable standard maintains lower cost buildings within the overall residential stock. That is a good thing.
28. For the above reasons, I consider it appropriate that a permit issue.
29. Mr. Buchanan asked that the first two points of the objector's conditional withdrawal be included, a request with which I agree. He also submitted that Condition 7 is not required as its provisions are covered by the provisions of the Local Government Act. I agreed with both points, the latter in particular is a doubling-up of statutory provisions at unnecessary cost to the applicant and therefore an inappropriate use of Section 173 agreements.
* a south-facing window in Unit 1 be provided with acoustic-quality glass (agreed, though I have to presume that this is the southern window of the living room)
* Condition 4 to be retained by rewording to make it performance based (accepted).
For the above reasons, this Application is allowed subject to conditions. It is appropriate for a permit to be granted for a second dwelling on the subject land and I will so order.
NGB Developments Pty Ltd
Manningham CC [2001] VCAT 502
Tribunal allowed the application for review, set aside the Responsible Authority's refusal, and directed the Responsible Authority to issue a permit for a second dwelling at 871 Doncaster Road subject to detailed conditions and endorsed amended plans (Order and Directions).