appellant. The Council's refusal was set aside. A permit was granted for construction of three dwellings, building within a special building overlay and creation of an access to a Road Zone Category 1 at 152...
Key principles
Whether to permit an access onto a Road Zone Category 1 was a discretionary planning decision. The Tribunal, standing in the shoes of the Responsible Authority, had to balance...
On the particular facts, one access serving one dwelling onto Tooronga Road was acceptable: the road geometry, traffic conditions, observed absence of recorded accidents in the...
A turning area within dwelling three's front setback, designed to allow vehicles to leave in a forward direction, was a positive feature and could be required by permit condition...
Issues before the court
Whether access for dwelling three directly onto Tooronga Road, a Road Zone Category 1, should be permitted despite VicRoads' objection.
Whether permit conditions should address vehicle turning, design details, overlooking, landscaping, trees and flood-related requirements.
Plain English Summary
The Tribunal allowed the review and granted a permit for three dwellings. Although VicRoads objected to a driveway onto Tooronga Road, the Member assessed the particular location rather than treating the general preference to limit arterial-road access as decisive. The road layout, traffic conditions and the Council's concern about additional crossovers on Wilson Street supported permitting the access in this case. The permit required, among other things, a permeable turning area intended to help vehicles leave in a forward direction, screening, landscaping, tree protection and flood-related measures.
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Deep Dive
1,952 words · generated 30/09/2026
What happened
Nicholas & Alexander Architects applied to the Victorian Civil and Administrative Tribunal for merits review of Stonnington City Council's refusal to grant a permit for three two-storey dwellings at 152 Tooronga Road, Glen Iris. The proposal required permission for construction of the dwellings, building within a special building overlay, and access onto a Road Zone Category 1. The hearing was on 8 May 2009; the Tribunal's decision is dated 11 May 2009.
Cited legislation
1 cited instrument linked from this judgment.
The main contested issue was the proposed driveway access for dwelling three directly onto Tooronga Road. The site is on the south-east corner of Tooronga Road and Wilson Street. The proposal also included two single crossings from Wilson Street, while the rear right of way was not proposed as an access point ([6]–[7]).
The Council supported the development in general, but said it was required to refuse the application because VicRoads, a referral authority under section 55 of the Planning and Environment Act 1987, objected to the Tooronga Road access. The Member recorded the Council's position that section 61(12) consequently required refusal ([2]). The judgment also notes that a permit was required under clause 52.29 of the Stonnington Planning Scheme to create an access onto a Road Zone Category 1 ([3]).
VicRoads' position was that arterial roads should have fewer vehicle access points because each access point could create a traffic conflict, with particular concern about vehicles reversing onto the road ([8]–[12]). The applicant relied on traffic evidence from Mr Symons. He described Tooronga Road as being at the lower end of the arterial-road hierarchy and gave approximate peak-hour and daily traffic figures. He considered that the proposed access would not significantly affect traffic safety or flow, referring to traffic platooning near lights, sight distance, and the width of the footpath and parking lane ([17]–[19]).
The Member inspected the site and surrounding area after the hearing ([20]). The final order set aside the Council's decision and granted the permit, subject to conditions. Those included plan changes, a permeable turning area within dwelling three's frontage setback, screening, landscaping and tree protection requirements, and Melbourne Water conditions addressing flood levels and runoff.
Why the court decided this way
The Member did not treat the general objective of limiting access points onto arterial roads as determinative. The Member acknowledged that VicRoads' propositions had merit, including the potential for conflict at vehicle access points ([10], [13]). But the stated task was to exercise the relevant discretion by balancing the issues and deciding whether this proposed access was an acceptable planning outcome ([14]).
Several location-specific considerations influenced that balance. First, the Member observed a high prevalence of access points to Tooronga Road in that location. The Member expressly cautioned that existing crossovers did not, on their own, justify another one. However, the absence of recorded accidents there over the preceding five years had some weight ([21]). The judgment does not identify the source or scope of the accident records, so the point should be read as the Member's stated factual observation rather than a general rule about how accident history must be assessed.
Second, the road geometry was considered favourable to access. The Member referred to a wide footpath, nature strip, dedicated parking lane and bicycle lane between the site and the through carriageway ([22]). This layout was treated as relevant to the safety assessment. The Member contrasted it with a hypothetical access directly onto the carriageway, saying the view could then be different ([23]). That contrast makes the reasoning fact-sensitive: the decision did not establish that access onto an arterial road is generally acceptable.
Third, the Member considered traffic speeds and the likely road configuration. Traffic travelling south, the direction into which an exiting vehicle would reverse, was observed to be moving at reduced speeds as it approached the commercial centre and intersection with Wattletree Road ([25]). The Member also took account of Mr Symons' evidence that the road geometry was unlikely to change in the foreseeable future ([24]).
The Member placed the road-access analysis alongside the Council's position about Wilson Street. The Council preferred to keep that street's crossovers to a minimum because it was an access point to the well-used Viva Street Reserve and another crossover could affect pedestrian amenity and safety ([16]). The Member understood that preference and concluded that, on balance, a single crossover serving one dwelling onto Tooronga Road would not compromise the safety or efficient operation of traffic there ([26]).
The turning area was part of the acceptable design outcome. The Member recognised that it might not be usable every time, particularly if the tandem car space was occupied, but considered that the opportunity for vehicles to turn and exit forwards was still beneficial ([27]). The permit therefore required a permeable turning area within the frontage setback, and the Member also proposed widening dwelling three's garage opening to improve turning capability ([28]–[29]).
Before and after state of the law
The judgment does not set out a broad account of the law before the decision, nor does it refer to earlier cases. Its legal framework is the one stated in the reasons: a permit was required under clause 52.29 for access onto a Road Zone Category 1 ([3]); the Council relied on the referral authority objection and section 61(12) as requiring refusal ([2]); and the Member described the access decision as discretionary and requiring a balance of relevant considerations ([14]).
The decision changed the outcome of this particular permit application. The refusal was set aside, and a permit was ordered under section 85(1)(b) of the Planning and Environment Act 1987. The order authorised the proposal, including the Tooronga Road access, subject to conditions.
The reasons support a limited proposition about the Member's approach in this case: the general aim of minimising access points did not end the analysis. The Member considered local traffic and road conditions, the relationship between the two possible street frontages, and the design response. The decision does not state that those considerations will always outweigh a referral authority's objection, or that any particular factor is mandatory in every access application. Nor does it establish a general outcome for other arterial-road access proposals.
The judgment does not describe any change to the statutory text or planning scheme provisions. It is therefore more accurate to describe its contribution as an applied, fact-specific planning assessment, rather than a change in the governing law.
Key passages with plain-English translation
At [14], the Member said that the Tribunal had to decide, by “balancing all the relevant issues”, whether the proposed access was an acceptable planning outcome. In plain English, the Member treated the access question as one requiring an overall evaluation, rather than allowing a single concern to decide the issue automatically.
At [21], the Member accepted that the existence of other crossovers was not justification by itself for adding another. The Member nevertheless gave some weight to the absence of recorded accidents in the location over five years. In plain English, existing access points were relevant background, but the Member did not treat them as a precedent that automatically supported this proposal.
At [23], the Member said that the favourable assessment of the road geometry might not apply if access were directly onto the carriageway. In plain English, the location's separation and layout mattered; a materially different road arrangement could lead to a different assessment.
At [26], the Member concluded that one crossover for one dwelling would not compromise traffic safety or efficient operation on Tooronga Road. This is the decisive conclusion on the main dispute. It is tied to the site and evidence described in the preceding paragraphs, not expressed as a general rule.
At [27], the Member noted that a turning bay might not be usable every time but that the opportunity to use it and leave in a forward direction should not be overlooked. In plain English, a design feature could still contribute to the planning outcome even if its benefit was not guaranteed on every vehicle movement.
What fact patterns trigger this precedent
The reasoning is most directly relevant to a planning permit dispute involving proposed access to an arterial road or a road designated as a Road Zone Category 1, where the relevant access requires permission under the applicable planning scheme. The judgment specifically concerns clause 52.29 of the Stonnington Planning Scheme and a referral authority objection by VicRoads ([2]–[3]).
The fact pattern that mattered here included a site with two potential street frontages, a proposal for separate Wilson Street crossings and a single access onto Tooronga Road, and a nearby reserve whose users were part of the Council's reasoning about pedestrian amenity and safety ([6]–[7], [16]). The assessment also depended on evidence about traffic volumes and movement, road geometry, sight distance, traffic speed and the possibility of vehicles turning within the site ([17]–[19], [22]–[27]).
The decision may be a useful comparison where a decision-maker is weighing arterial-road access against local road layout and amenity concerns. Its limits are equally important. The Member relied on the particular geometry of this stretch of Tooronga Road, the observed traffic conditions near Wattletree Road, the local pattern of crossovers, and the stated accident history. The Member expressly indicated that direct access onto a carriageway could produce a different view ([21]–[25]).
The reasons do not establish that a proposal with different traffic conditions, a different road design, more intensive access, or different available alternative access must receive the same result. They also do not provide a general test for what evidence will suffice in another application.
How later courts have treated it
The supplied judgment contains no discussion of later decisions or subsequent treatment. It cites no other judgments in its reasons, and the material provided does not include later cases that apply, distinguish, follow or otherwise discuss this decision. Accordingly, the later judicial treatment of Nicholas & Alexander Architects v Stonnington CC cannot be established from this source.
The decision itself is a VCAT merits-review determination by Member N. Hadjigeorgiou, not a judgment of a court identified in the material. The text supplied provides no information about its subsequent citation history or the weight later decision-makers have given it. Any account of later treatment would require sources beyond this judgment.
Still-open questions
The reasons leave several matters outside their scope. They do not give detailed information about the underlying traffic data, the methodology used to identify the absence of recorded accidents, or the range of traffic conditions over the five-year period mentioned at [21]. They also do not reproduce the full traffic evidence or explain in detail how the relevant planning scheme objectives were evaluated beyond the observations recorded in the reasons.
The decision does not explain the full legal operation of sections 55, 61(12) and 85(1)(b), or address any disagreement about their interpretation. It records the Council's view that the referral authority's objection required refusal and then describes the Tribunal's discretionary planning assessment ([2], [14]). The reasons do not set out how that relationship operates in circumstances different from this application.
The order contains numerous conditions, but the reasons discuss only some of them. For example, the order includes screening, landscaping, tree-protection, drainage and Melbourne Water requirements, while the reasons principally explain the access, turning area, façade treatment and ceiling-height matters ([27]–[31]). The judgment does not explain the technical basis for each condition.
The source also does not establish how later decision-makers have treated the decision. Its reasoning can be described from the text, but broader propositions about its subsequent influence would require additional legal sources.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Judgment (18 paragraphs)
[1]
Nicholas & Alexander Architects v Stonnington CC [2009] VCAT 850 (11 May 2009)
[2]
Construction of three dwellings, consent to build over a special building overlay and access onto a road zone category 1.
[3]
Nicholas & Alexander Architects v Stonnington CC [2009] VCAT 850
[4]
The order of the Tribunal is that the decision of the Responsible Authority is set aside.
[5]
A permit is granted for the construction of three dwellings, building within a special building overlay and the creation of an access to a road zone category 1 at 152 Tooronga Road, Glen Iris generally in accordance with the endorsed plan and subject to the following conditions:
[6]
Before the commencement of the development, three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the plans Council date stamped 4 April 2008 but modified to show to the satisfaction of the Responsible Authority:
[7]
Articulation of the frontage of Units 1 and 2 by use of a change of material generally consistent with the plans tabled at VCAT on 8 May 2009.
2. The provision of a permeable surface turning area within the frontage setback area (to Tooronga Rd) of dwelling three to make provision for vehicles to exit onto Tooronga Rd in a forward direction.
[8]
Fixed obscure glazing or screening, in accordance with Standard B22 of Clause 55 to any part of the first floor south-facing habitable room windows below 1.7m above finished floor level.
[9]
The east-facing deck to Unit 1 to be screened in accordance with Standard B22 of Clause 55.04-6 of the City of Stonnington Planning Scheme.
2. Elevation plans of the front fences proposed along the Wilson Street and Tooronga Road frontages.
3. Details of construction measures proposed for the fence along the western property boundary and adjacent to any street trees.
4. Any changes required by Melbourne Water conditions (see Below) must not result in the upper level ceiling of dwelling three exceeding RL39.93m .
The development must be in accordance with the endorsed plans unless otherwise agreed in writing by the Responsible Authority.
Before the development starts, a schedule of construction materials, external finishes and colours to the satisfaction of the Responsible Authority must be submitted and approved. When approved, the schedule will be endorsed and will form part of the permit.
Before the development starts, a landscape plan to be prepared by a landscape architect or suitably qualified or experienced landscape designer, must be submitted to and approved by the Responsible Authority. When approved, the landscape plan will be endorsed and will then form part of the permit. The landscape plan must be drawn to scale with dimensions and three copies must be provided. (The landscape plan must show):
[10]
A survey (including botanical names) of all existing vegetation to be retained and/or removed.
2. Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary.
[11]
Details of surface finishes of pathways and driveways.
[12]
A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.
2. The extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site.
3. Details of all proposed hard surface materials including pathways, patio or decked areas.
Before the occupation of the development starts, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
Before the development (including excavation and demolition) starts, a tree protection fence must be erected around the Eucalyptus nicholii (Peppermint Gum) located on the Tooronga Road frontage. The fence must be at least 1.5m above ground level and cover an area of 3sqm from the base of the trunk to define a 'Tree Protection Zone'. The fence must be constructed of star pickets and chain mesh to the satisfaction of the Responsible Authority. The tree protection fence must remain in place until all construction is completed. No service trenches should be built within 4m of the tree stem. The ground surface of the Tree Protection Zone must be covered by a 100 mm deep layer of mulch before the development starts and be watered regularly to the satisfaction of the Responsible Authority.
Before the development (including excavation and demolition) starts, a tree protection fence must be erected around any street tree adjacent to the site. The fence must have a height of 1.5m and cover an area of 2sqm to the satisfaction of the Responsible Authority.
[13]
No polluted and / or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
Finished floor level of dwelling three must be a minimum of 300mm above the applicable flood level.
Finished floor level of the garage to dwelling three must be a minimum of 150mm above the applicable flood level.
Prior to the issue of a Certificate of Occupancy, a certified survey plan, showing finished floor levels (as constructed) reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water's requirements.
All doors, windows, vents and openings to dwelling three must be a minimum of 300mm above the applicable flood level.
[14]
Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
The level of the footpaths and/or laneways must not be lowered or altered in any way to facilitate access to the site.
Prior to a building permit being issued, a report for the legal point of discharge must be obtained from Council and a drainage design for the development, must be prepared by a suitably qualified Engineer. The drainage must be constructed in accordance with the Engineer's design.
Prior to the occupation of the building, all screening devices designed to limit overlooking hereby approved must be fixed to a height of 1.7m and have no more than 25% openings or an alternative to the satisfaction of the Responsible Authority. The screens must be designed and coloured to blend in with the development to the satisfaction of the Responsible Authority.
This permit will expire if one of the following circumstances applies:
The development is not started within two years of the date of this permit.
The development is not completed within four years of the date of this permit.
[15]
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.
Ms Tania Cincotta, Solicitor, Best Hooper Solicitors and she called Mr Russell Symons of Ratio Consulting to give traffic evidence.
[18]
This was an application for review of the decision of the Stonnington City Council to refuse the grant of a permit for the development of three, two storey dwellings located at 152 Tooronga Road, Glen Iris.
The Responsible Authority essentially support the development of the three dwellings on the site but are required to refuse the application because VicRoads a referral authority pursuant to section 55 of the Planning and Environment Act objected to the creation of an accessway onto Tooronga Road. Thus pursuant to section 61(12) of the Planning and Environment Act the Responsible Authority must refuse the application.
Tooronga Road itself is within a Road Zone Category 1 and as such, a permit is required pursuant to clause 52.29 of the Stonnington Planning Scheme to create an access onto that road.
I do not propose to repeat the description of the three dwelling proposal in any detail or the site and surrounding area or the response to the various clause 55 objectives.
In these reasons, I intend to concentrate firstly on the issue of road access and secondly to the issues relating to the draft conditions and the design features that are in dispute arising from them.
The review site is located on the south east corner of Tooronga Road and Wilson Street. Wilson Street is a no through road. On the north side of Wilson Street is Viva Street Reserve. No direct access is available to this reserve from Tooronga Road. Access is via either Wilson or Viva Streets.
Two single crossings are proposed along Wilson Street to service this development. While the rear right of way also services the review site no access is proposed from that right of way. Finally the proposal provides for one dwelling, being dwelling three, to have its vehicular access directly off Tooronga Road.
Parties
Applicant/Plaintiff:
Nicholas & Alexander Architects
Respondent/Defendant:
Stonnington CC [2009] VCAT 850
Legislation Cited (1)
Environment Act 1987
AI Analysis
Outcomeappellant
Disposition:
The Council's refusal was set aside. A permit was granted for construction of three dwellings, building within a special building overlay and creation of an access to a Road Zone Category 1 at 152 Tooronga Road, generally in accordance with the endorsed plan and subject to the stated conditions.
Vic Roads, simply put, are charged with the responsibility of developing, managing and maintaining our arterial road network. As a general principle VicRoads discourages direct access onto its arterial road.
In this instance, following the consideration of the witness statement by Mr Symons, Vic Roads maintained its objection to the creation of a crossing onto Tooronga Road.
Mr Adeyemi for VicRoads submitted the primary purpose of the declared arterial road network is to provide for the safe and efficient movement of road traffic. He stated that in order to assist in achieving that role, Vic Roads tries to minimise a number of vehicular access points onto the declared roads. He suggested that every vehicular access point is a potential point for conflict. He added this conflict was exacerbated when vehicles reverse out onto the road.
Mr Adeyemi also suggested that the clause 55.03-9 objectives of the Stonnington Planning Scheme reinforce the objectives of VicRoads in maintaining safe and efficient road networks.
He submitted that simply because other existing dwellings along Tooronga Road had direct access to Tooronga Road that did not justify this proposal being supported particularly in the circumstances where readily available access can be provided from both Wilson Street and the rear right of way. VicRoads submission was that the proposal would not result in a safe manageable and convenient access arrangement.
On face value there is much merit in the propositions put forward by VicRoads. They submitted we are starting with a 'clean sheet' and access could be modified to produce a different outcome.
However as Mr Cincotta correctly observed the power to approve or disapprove the creation of an access is a discretionary power. As such the Tribunal standing in the shoes of the Responsible Authority must determine on balancing all the relevant issues whether the proposed access is an acceptable planning outcome.
My own initial reaction was to question 'why couldn't the design be modified to have no access off Tooronga Road'?
Mr Pagliaro for the Responsible Authority council submitted that council preferred the outcome proposed. He submitted that Wilson Street was one of the main access points to Viva St Reserve and that the creation of another access along that road would reduce both the amenity and safety of pedestrians using Viva Reserve. I was informed at the hearing that Viva Reserve is a well utilised park reserve.
Ms Cincotta called Mr Symons to give traffic evidence in this matter. Mr Symons submitted that while Tooronga Road is an arterial road or a Road Zone Category 1 it is at the lower end of that hierarchy of arterial roads and carries peak hour volumes of approximately 1200 vehicles per hour and daily traffic flows are approximately 12,500 vehicles per day, well below the 20,000 or so that most arterial roads carry.
Mr Symons gave evidence that in his opinion there would be no significant impact on traffic safety or traffic flow as a result of the proposed access. He suggested that the access was acceptable because of the effects of:
The platooning caused by nearby intersection lights provides gaps in the traffic to assist driveway access and egress;
The road alignment and geometry provides for a good sight distance;
The width of the footpath and parking lane provide the opportunity for cars reversing out of the site to reverse fully before interfering with any bike or traffic through lane.
Mr Symons concluded that the proposal satisfies the objectives of both clause 52.29 and clause 55.03-9.
Following the hearing I inspected the site and surrounding area.
On my inspection of the area it was clear that in this location there is a high prevalence of access points to Tooronga Road. While I agree with the observation that Mr Adeyemi outlined above, that the existence of numerous crossovers should not be justification to allow another one to occur, there is some weight in the fact that despite the proliferation of access points no accidents have been recorded in this location over the last five years.
I think it is also relevant that the road geometry, that provides for a wide footpath nature strip dedicated parking lane and a bicycle lane, all before the through carriageway is a factor in favour of the safe access to the road in this location.
Thus, in this particular circumstance where the road geometry weighs favourably to allowing the access is a relevant consideration that may not always be the case. For example if access was directly onto the carriageway my view may be quite different.
In considering the road geometry, I have also taken into consideration the evidence of Mr Symons and his opinion that it is unlikely that the geometry of Tooronga Road would alter in the foreseeable future.
It was also my observation that traffic travelling in a southerly direction (which is the direction of traffic flow that any exiting vehicle from the site would reverse into) was generally travelling at reduced speeds as they prepared to enter the commercial centre and intersection area of Tooronga Road with Wattletree Road just to the south. Thus traffic flow is also at lower speeds than may otherwise be anticipated on arterial roads.
Following my inspection I can appreciate and understand the Responsible Authority's preference to maintain Wilson Street with as few crossovers as possible and I believe that on balance the provision of one crossover servicing one dwelling onto Tooronga Road does not compromise either the safety or the efficient operation of Tooronga Road traffic.
During the course of the hearing discussion took place about the provision of a turning bay within the front setback of dwelling three and Tooronga Road. I consider the opportunity to provide such a turning bay to be a positive outcome in this development. While it is true the turning bay may not be capable of use every time particularly if the tandem car space is utilised, the opportunity to have it available for use and for vehicles to use the turning bay and leave the site in a forward direction should not be overlooked.
Thus I propose to allow the access to Tooronga Road with the provision of a turning lane within the front setback area of dwelling three and that the surface of the turning lane be constructed of a permeable material. I propose to impose the condition suggested by Ms Cincotta on the permit.
I also propose to impose a condition requiring the widening of the opening to the garage of dwelling three as suggested by Mr Symons to ensure better turning capability.
Discussion also took place in response to draft conditions 1(a) and (b). Following discussion at the hearing I am satisfied that the alternate façade treatment tabled at the hearing by Ms Cincotta is acceptable and achieves the outcomes sought by the Responsible Authority. These changes effectively used a material recess between the two dwellings to provide the articulation sought by the Responsible Authority's urban designer.
In response to condition 1(g), being a Melbourne Water condition, I propose to modify that condition so that the maximum ceiling height of dwelling three is 39.93 RL. I also propose to amend conditions 9, 10 and 12 to reflect that those conditions refer only to dwelling three.
As a consequence I propose to set aside the Responsible Authority's decision and direct the grant of a permit generally in accordance with the draft conditions and as modified above.