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[2020] VCAT 1126
respondent. The application for a permit was refused. The order states: “the decision of the responsible authority is affirmed” and “no permit is granted”. The document's introductory order heading says...
The land was earmarked for medium density housing, and the proposal was sufficiently consistent with the Development Plan to pass the “generally in accordance” test. But that was not enough to secure a permit. The Tribunal considered the 89-dwelling scheme too intensive in the form proposed: it found the design too continuous and repetitive, with shortcomings in the way it addressed road frontages, the site entrance, pedestrians, landscaping and neighbouring homes. Housing diversity and future services did not outweigh those concerns. Bushfire risk was considered manageable through conditions. The Tribunal refused the permit. The document has an inconsistency: its order heading says “Permit granted”, but its formal orders and reasons say no permit was granted.
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2,228 words · generated 30/09/2026
1 cited instrument linked from this judgment.
Oreana Project Management Pty Ltd applied to VCAT under section 79 of the Planning and Environment Act 1987 after Greater Geelong City Council failed to grant a permit within the prescribed time. The application concerned 9-13 Manzeene Avenue, Lara, a 2.174-hectare site in General Residential Zone schedule 1 and Development Plan Overlay schedule 29. The proposal was for 89 attached or semi-detached dwellings, mostly single-storey, with a stated site density of 40.9 dwellings per hectare.
The site sat within the area covered by the Manzeene Village Development Plan, as amended in May 2019. That plan identified the south-western corner, including the subject land, for potential medium density residential development and included Medium Density Residential Development Design Principles. The Council opposed the permit application, focusing on density, attached built form, setbacks and open-space provision. The applicant relied on planning evidence and on potential plan changes proposed through conditions.
The Tribunal, constituted by Senior Member Margaret Baird, heard the matter on 21 and 22 September 2020 and made its order on 8 October 2020. Its substantive conclusion was that no permit should issue.
There is a drafting inconsistency in the supplied decision text. The order heading says “Permit granted”, but the operative orders say that the responsible authority’s decision is affirmed and “no permit is granted”. The reasons likewise conclude that “no permit is granted”. The operative orders and reasons therefore point to refusal, notwithstanding the contradictory heading.
The judgment text supplied here does not contain continuous paragraph numbers. For that reason, the discussion below identifies the relevant section headings and quoted passages rather than assigning paragraph citations that cannot be verified from the supplied text.
The Tribunal considered whether the application was generally in accordance with the Development Plan, whether the density was acceptable, whether the built form and layout provided an appropriate character response, and whether the proposal met relevant clause 55 objectives. Those were distinct questions. The land's identification for medium density housing helped answer the first question, but did not resolve the others.
On general accordance, the Development Plan described Lot F as a potential medium-density location and expressed an intention to retain flexibility for alternative accommodation styles and densities. The Tribunal consequently found the permit application generally in accordance with the plan. It also treated the plan's design principles as important to the merits assessment, notwithstanding that some were worded using “must”. The result was not a blanket approval based on the land-use designation: the application still had to be assessed against the principles and the scheme.
The density evidence placed the proposed 40.9 dwellings per hectare towards the upper end of the strategic material considered by the parties. The Tribunal noted that the scheme and Development Plan did not define medium density for this site. It considered local and state policy, the City of Greater Geelong Housing Diversity Strategy, and the Lara West Precinct Structure Plan as part of the context. The Housing Diversity Strategy described medium-density development as generally resulting in a gross residential density of 20 to 40 dwellings per hectare, while also cautioning that those figures were not target densities and that outcomes depended on capacity, market conditions and policy context.
The Tribunal accepted that the proposal offered a different housing choice from the main dwelling types then found in Manzeene Village, and treated housing diversity and affordability as important strategic considerations. But it also found that the site had not been expressly earmarked for higher or high-density housing. Future facilities and services in Lara West were relevant, but their timing was uncertain. The Tribunal did not treat density as an isolated number; its conclusion was that the intensity was excessive in the form proposed because it produced design and layout compromises.
The design assessment was central. Along Patullos Road and O'Hallorans Road, the Development Plan principles sought to avoid built form running continuously along the full length and called for physical breaks with integrated landscape treatment. The Tribunal considered the proposal too continuous and repetitive. It was not persuaded that landscaping shown on the plans, or the changes proposed through conditions, would sufficiently mitigate the effect.
The Tribunal also considered how dwellings presented to internal roads and the main entry. Some dwellings were rear-loaded, so their street-facing presentation included garages and high fencing, with few windows. In the Tribunal's view, this compromised visual amenity and passive surveillance. It found the proposed treatment of the prominent Patullos Road and O'Hallorans Road corner did not provide the architectural feature or statement sought by the Development Plan principles.
At the northern boundary, the principles sought transition in lot sizes and setbacks alongside established homes, including space for upright trees. The Tribunal considered the proposed setbacks and limited spacing inadequate to provide the intended transition. The proposed one-metre “trafficable footpath” also did not persuade it that pedestrian amenity was sufficiently protected in the shared internal-road environment. It referred to the Development Plan's network of safe walking and cycling paths and road profiles showing 1.5-metre footpaths.
The Tribunal's clause 55 assessment drew on these same findings. It concluded that relevant objectives concerning neighbourhood character, landscaping, safety and passive surveillance, visitor parking and open space were not met. It did not, however, refuse the permit simply because there was no communal open space: the design principles did not require it. The Tribunal observed that a development of lesser intensity could potentially provide more open space for larger dwellings or a communal area.
Bushfire was considered separately. Part of the site was in a bushfire-prone area. The Country Fire Authority recommended permit conditions, which the applicant did not oppose. The Tribunal considered that appropriate bushfire measures could be implemented through conditions, so this issue did not drive refusal.
This decision is an application of the planning scheme to a particular permit proposal, not a reported legislative amendment or a statement that the law changed. The Tribunal applied the scheme provisions and policies identified in the reasons, including clause 43.04-2, clause 32.08, clause 55, clause 71.02 and clause 13.02-1S.
Before the decision, the relevant planning framework already included an approved Development Plan that identified the site for potential medium-density development and contained design principles. The Tribunal did not treat that designation as a guarantee that any medium-density proposal would be approved. Rather, it distinguished being “generally in accordance with” the plan from providing an acceptable planning outcome under the rest of the scheme.
After the decision, the immediate result was that no permit was granted for this application. The reasons do not establish a general numerical ceiling for medium-density development in Lara, nor do they say that 40.9 dwellings per hectare is unacceptable in every location. The outcome turned on the interaction between this site's context, the scheme, the Development Plan principles, and the proposal's design and layout.
The reasons refer to Fabcot Pty Ltd v Whittlesea CC [2014] VCAT 600 because the applicant relied on principles concerning “generally in accordance with”. The Tribunal records the proposition advanced by the applicant that the question is factual and case-specific, and that less precision in the primary document can allow greater flexibility. The supplied reasons do not set out a detailed treatment or independent analysis of Fabcot, so it should not be presented as a newly adopted rule beyond that recorded discussion.
The Tribunal stated: “I determine that the permit application is generally in accordance with the MVDP because the subject land is identified for medium density housing.” In plain English, the proposal fit the Development Plan's broad identification of the site for medium-density housing. This answered a threshold consistency question, not whether the proposed scheme was acceptable overall.
The Tribunal's central conclusion was: “The dwelling intensity is too great, resulting in multiple unacceptable design and layout compromises.” In context, this was not a finding that density alone dictated refusal. The Tribunal connected the intensity to the specific problems it identified, including continuous built form, limited landscape breaks, the interface with existing homes, the internal pedestrian environment and the treatment of key frontages.
On the internal walking environment, the Tribunal said the one-metre “trafficable footpath” did not persuade it that walkability and pedestrian amenity were adequately achieved. In plain English, the Tribunal was not satisfied that a shared internal space and narrow path adequately addressed the pedestrian environment in this design. It also observed that a separate footpath would minimise potential conflict between vehicles and pedestrians.
On open space, the Tribunal stated that it had not refused a permit because no communal open space was proposed. This is an important qualification. Open space was part of the overall assessment, but its absence was not treated as an independent rule requiring refusal. The Tribunal's concern was that a lower-intensity design might better provide for larger dwellings or a communal area.
On bushfire, the Tribunal considered that protection measures could be implemented through conditions, after considering the CFA's advice. The plain-English significance is that this issue was capable of being addressed by conditions in the Tribunal's assessment, unlike the broader design and layout concerns.
Finally, the reasons state: “For the above reasons, no permit is granted.” This matches the formal order and resolves the inconsistency with the introductory “Permit granted” heading.
The decision is most relevant as a comparison where a planning scheme allows or anticipates medium-density housing, but the application raises a separate question about whether the specific design responds adequately to an approved development plan or local character framework. The distinction between land-use suitability in principle and the acceptability of a particular layout is central.
It may also be relevant where a development is towards the high end of the density contemplated by the strategic documents applicable to the site, and the scheme's intensity appears connected to design outcomes. In this case, the Tribunal's assessment examined not only dwellings per hectare but also the continuity of buildings, the road-facing presentation, setbacks, landscape opportunities, pedestrian movement and passive surveillance.
The decision is a useful factual comparison for sites with prominent road interfaces, a visible main entrance, existing low-density homes at one boundary, or internal roads intended to be publicly accessible but privately owned. It illustrates that the Tribunal examined how residents and people moving through the site would experience the layout, including whether windows and entries provided visual interest and surveillance.
Its relevance is narrower where the site has materially different strategic designations, access to services, development-plan wording, or built-form arrangements. The reasons do not establish a universal density limit, prescribe a standard design for all medium-density proposals, or say that every development without communal open space should be refused. They expressly acknowledge flexibility in the plan and do not rely on the absence of communal open space as the sole basis for refusal.
The supplied judgment contains no later decisions and no account of how a later court or tribunal treated this decision. On the information provided, it is not possible to identify whether later cases followed, distinguished, applied or criticised it.
The judgment itself refers to Fabcot Pty Ltd v Whittlesea CC [2014] VCAT 600 in recording the applicant's submissions about general accordance. That reference is not evidence of how later decision-makers treated Oreana. Nor does the material supplied show that the Oreana decision was appealed or otherwise considered in a later proceeding.
Accordingly, the grounded account is limited: this is a VCAT decision on a particular residential proposal, and its reasons apply the scheme provisions to that proposal's circumstances. Any assessment of later treatment would require later legal sources not included in the supplied material.
The reasons leave open how a different design or a reduced dwelling intensity might have addressed the identified deficiencies. They do not state what revised arrangement would have been acceptable, and the decision should not be read as implying that any single change would have secured a permit.
The plan's flexibility also raises an interpretive question about how a site identified for medium density should be assessed where the proposal approaches or exceeds the upper end of the density ranges in reference documents. The Tribunal did not establish a universal definition of medium density for this site. It instead considered the sources in context and assessed the actual design.
The decision also leaves open the practical weight to be given to future services where their timing is uncertain. The Tribunal accepted that future Lara West facilities and transport were relevant, but noted uncertainty about timing. It did not set a general rule for how uncertainty about future infrastructure should affect other applications.
A further question is how much separation or landscaping is sufficient to meet a development plan's requirements for breaks in built form and transition to established homes. The reasons identify the deficiencies in the submitted plans, but do not set numerical standards beyond the specific plan details discussed.
Finally, the source itself leaves a document-integrity issue: the heading “Permit granted” conflicts with both operative orders and the reasons. The operative wording and express conclusion say no permit was granted. This analysis is general legal information, not legal advice. Zoe can make mistakes, and before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
[1] The submissions and evidence of the parties, supporting exhibits given at the hearing, and statements of grounds filed have all been considered in the determination of the proceeding. Consistent with the practice of the Tribunal, not all of the material presented by the parties will be cited or referred to in these reasons.
[2] An extract of the design response plan is presented in the image.
[3] Paragraphs 122-124 of the statement of evidence.
[4] Extracts of plans in the statement of planning evidence at page 7.
[5] Relevant clauses are listed in the Information section of these reasons.
[6] Statement of evidence at paragraphs 16-18 and Appendix 5.
[7] Relying on Fabcot Pty Ltd v Whittlesea CC [2014] VCAT 600.
[8] MVDP endorsed on 16 May 2019 at page 25 "Medium Density Housing".
[9] I have referred to the amendment made to the MVDP in 2019 although I note that parts of the document retain reference to medium density/commercial such as Figure 3 of the Plan endorsed on 15/05/2019.
[10] Another version does not refer to this Code.
[11] Clause 21.06. City of Greater Geelong Housing Diversity Strategy, alphaPlan, David Lock Associates and the City of Greater Geelong, 2007. Adopted by the Council in 2008.
[12] City of Greater Geelong Housing Diversity Strategy, at figure 2.
[14] Lara West Precinct Structure Plan, at page 31.
[16] Statement of evidence, at paragraph 97.
[17] Summarised in the applicant's written submission at paragraph 47.
[18] Council's written submission at paragraph 49.
[19] Based on the intersection of Botanic Drive and O'Hallorans Road intersection.
[20] Such as clauses 11, 15, 16, 21.06 and 22.13 as well as no. 7 in the RDPs.
[21] I have given weight in balancing all relevant considerations including the proposal's response to nos. 1 and 2 in the RDPs that are not argued by the Council in its grounds.
[22] It stated, in part, that the proposed density was supported.
[23] Visitor parking is focused in the northern part of Lot F. At the hearing, the applicant's representative drew attention to some additional parking opportunities within the site. The applicant does not oppose relocation of some spaces. This does not, however, overcome the concern about the manner in which the primary entry into Lot F is designed.
[24] Statement of evidence at paragraph 129, page 23.
[25] MVDP endorsed on 16 May 2019 at page 19 Element 4. This is also supported by State and local policy including clause 21.06 as set out in the Council's submission.
[26] Extract from planning property report.
Oreana Project Management Pty Ltd
Greater Geelong CC [2020] VCAT 1126
The application for a permit was refused. The order states: “the decision of the responsible authority is affirmed” and “no permit is granted”. The document's introductory order heading says “Permit granted”, which conflicts with those operative orders and the reasons' express conclusion that no permit is granted.