//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2008] VCAT 387
mixed. Council’s decision was affirmed subject to modified permit conditions. Revised plans were substituted by consent. The permit was directed to issue for retrospective demolition of the former deck and...
VCAT allowed the new rear deck to proceed, including retrospective approval for the demolition of the old deck, but required a taller privacy screen on the side facing Ms Pfab. The Member considered the elevated deck capable of raising a genuine or perceived privacy concern, while finding that the extra 200 millimetres of screening would provide a reasonable safeguard. He accepted that some noise might carry across the boundary but considered the deck’s size, likely use, setback and barriers sufficient in the circumstances. The Tribunal did not decide the parties’ broader personal disputes; it confined itself to planning merits.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,275 words · generated 29/09/2026
In Pfab v Boroondara CC [2008] VCAT 387, the Victorian Civil and Administrative Tribunal considered a proposal for a new rear deck at 56 Melville Street, Hawthorn. The permit applicant, Matthew Field, sought retrospective planning approval for demolition of an earlier deck and approval to build a larger replacement. The adjoining neighbour, Gisela Pfab, applied for review because she considered the new deck would unreasonably affect her privacy and create noise problems (Nature of proceeding, [1]).
No linked legislation citations have been extracted yet.
The proposed deck was 4.5 metres deep and 4.88 metres wide. It would sit at the level of the rear of the dwelling, approximately 1.1 to 1.2 metres above the natural ground at that point. The plans included a 1.7-metre privacy screen wrapping around the deck, together with a landing and stairs to the rear part of the site (Background information, [1], [5]–[7]). The appeal site was approximately 235 square metres and subject to both a Residential 1 Zone and a Heritage Overlay, which the Member said created permit triggers. The judgment identifies a range of relevant planning provisions, including Clauses 54 and 65, but does not reproduce their wording (Background information, [11]–[12]).
The earlier deck had reportedly existed for about 20 years and had no particular heritage value. The permit applicant said he had not known that planning approval was needed before it was demolished (Findings of Tribunal, [2]). VCAT treated the demolition as part of the planning application before it. It did not allow the parties’ wider, unhappy relationship to displace its focus on the planning merits (Findings of Tribunal, [1]–[2]).
The Tribunal heard the matter on 28 February 2008 and inspected the site the next day. The Member examined the rear courtyards, the boundary wall and fence, and the rear laneway. He also measured the brick wall and paling fence with a tape measure and step ladder (Nature of proceeding, [2]). That inspection informed the assessment of sightlines, relative levels and the physical barriers between the properties.
VCAT affirmed Council’s support for the application but varied the permit conditions. It required new plans showing the western part of the screen, facing Ms Pfab’s property, increased from 1.7 metres to 1.9 metres. The rest of the screen could remain at its proposed height. The revised plans supplied under cover of the solicitors’ letter dated 31 January 2008 were substituted by consent (Order, paragraphs 1–2).
The central issue was not whether an elevated deck could have any effect on privacy or noise. The Member accepted that the deck could create some potential for both. The question was whether those effects, assessed in the setting and with the proposed design features, were unreasonable.
For privacy, the Member first recognised a limitation in the existing boundary fence: because the deck was elevated, the fence might not by itself provide adequate protection (Potential privacy impacts, [1]). The proposed 1.7-metre screen was expected to reach approximately the same height as the trellising on the existing side fence (Potential privacy impacts, [2]). Ms Pfab was concerned that a taller person could still look into her courtyard from the deck. The permit applicant, in response, said he intended ordinary use and did not wish to invade her privacy (Potential privacy impacts, [3]).
The Member accepted the permit applicant’s stated intention but did not treat it as resolving the planning issue. He considered that close, side-by-side living arrangements in an inner-city location called for a cautious approach to possible privacy effects from a substantially elevated deck. He also took account of perceived loss of privacy, not only privacy impacts that could be objectively demonstrated (Potential privacy impacts, [4]). The judgment attributes that broader understanding to previous Tribunal divisions, but does not identify any of those decisions by citation.
The modification was specific and limited. The western screen was to rise by 200 millimetres, from 1.7 to 1.9 metres. The Member reasoned that this would remove doubt about the potential to overlook the neighbour’s courtyard. He referred to his own height and eye level to explain why a 1.9-metre screen would prevent him from looking over it. He also considered that the additional height on the western side would not create unreasonable solar-orientation effects, given the potential afternoon sun heat or glare in that location (Potential privacy impacts, [5]–[6]). The deck’s setback of roughly one metre from the common boundary further supported his conclusion (Potential privacy impacts, [7]).
For noise, the Member accepted that some noise would travel from the deck to Ms Pfab’s courtyard or rear bedroom. He did not regard the presence of some noise as enough, on its own, to make the proposal unacceptable. He placed the proposal in the context of an inner-city area where properties are close together and where some audible noise from neighbours is reasonably expected (Potential noise impacts, [2]). He also considered that the deck was not huge and that its occupants were unlikely to use it for purposes substantially different from those for which they might otherwise use the courtyard at ground level (Potential noise impacts, [3]).
The physical design was again important. The deck would be set back from the common boundary, and the Member identified two structures between the deck and the neighbour’s courtyard: the new privacy screen and the existing high side fence. In his view, those structures would mitigate noise to a reasonable extent (Potential noise impacts, [4]). The conclusion was therefore contextual: some noise could occur, but was within reasonable parameters for that location (Potential noise impacts, [5]).
The Tribunal’s disposition reflects this balancing. It did not refuse the deck because of potential privacy or noise effects. Instead, it required the focused privacy-screen change and otherwise affirmed Council’s support (Conclusion, [1]–[2]).
This judgment does not describe a change in legislation or announce a comprehensive new test for planning applications. It identifies the controls and policies it considered relevant, but does not set out their text or explain them clause by clause (Background information, [11]–[12]). Accordingly, the decision is most safely understood as a site-specific application of planning judgment, rather than as a full statement of the statutory content of those provisions.
The judgment does record one proposition about privacy: previous divisions of the Tribunal had accepted that potential privacy impacts may include perceived loss of privacy as well as objectively demonstrable impacts (Potential privacy impacts, [4]). VCAT used that proposition to explain why it was appropriate to take a cautious approach in these particular circumstances. It did not cite the earlier decisions, describe their facts, or identify whether the proposition was derived from a particular statutory test. The decision therefore supplies no basis for attributing a broader, universal rule to those unidentified cases.
Before the Tribunal’s order, the plans proposed a 1.7-metre screen around the deck. After the order, the permit required amended plans with a 1.9-metre screen on the western side only, while allowing the remaining screen to stay at its proposed height (Order, paragraph 2(a)). That is the concrete change produced by the proceeding. It shows how a permit condition could be adjusted to address a particular amenity concern without rejecting the proposal as a whole.
The judgment’s reasoning also illustrates that noise and privacy were assessed separately, though the same physical features could bear on both. The screen was primarily discussed as a privacy measure, but also treated as one of the structures mitigating noise. The setback similarly contributed to the privacy assessment and formed part of the noise analysis (Potential privacy impacts, [7]; Potential noise impacts, [4]). The decision does not state that these factors will necessarily be decisive in other cases. Their weight depended on the particular site, dimensions, levels and surrounding properties.
Privacy and caution. The Member said it was “appropriate to use a cautious approach” to potential privacy loss from a substantially elevated deck in close side-by-side living conditions (Potential privacy impacts, [4]). In plain English, the applicant’s stated intention to use the deck normally was not the only consideration. The Tribunal also considered how the design might affect the neighbour’s experience of privacy.
Perceived privacy. The Member said potential privacy impacts can include “not only objectively demonstrateable privacy issues but also a perceived loss of privacy” (Potential privacy impacts, [4]). In plain English, the Tribunal considered the neighbour’s perception as relevant to its planning assessment, even though the judgment does not say that perception alone decides every case.
The screen modification. The Member considered that increasing the western screen to 1.9 metres would remove doubt about the potential for overlooking into the courtyard (Potential privacy impacts, [5]). In plain English, the Tribunal addressed the concern by changing a defined part of the design, rather than requiring the entire screen to be raised.
Noise in context. The Member accepted that some noise might travel, but considered it within reasonable parameters for an inner-city location (Potential noise impacts, [4]–[5]). In plain English, the decision did not promise silence. It assessed whether expected noise was acceptable given the area, likely use and intervening structures.
Planning merits rather than personal history. The Member said his role was to concentrate on the planning merits rather than the parties’ “murky details” (Findings of Tribunal, [1]). In plain English, the review concerned the proposal’s planning effects, not a final determination of the neighbours’ broader relationship or disputes.
The judgment is most relevant as an example where a proposed residential structure is elevated above natural ground, placed near an adjoining home, and raises concerns about overlooking into a courtyard or similar private area. The factors the Member discussed include the height difference between the deck and ground, the height of the proposed screen, the existing fence and trellising, and the distance between the deck and the common boundary (Background information, [1], [9]–[10]; Potential privacy impacts, [1]–[7]).
It is also relevant where a neighbour raises both actual and perceived privacy effects. The Member explicitly took a cautious approach to the possibility of perceived loss of privacy, while linking the result to the physical design and close-proximity setting (Potential privacy impacts, [4]–[7]). The judgment does not establish that any perceived concern requires a design change. Its conclusion depended on the overall circumstances and the available, limited modification.
For noise, the decision may be a useful comparison where the proposal is a modest domestic deck in a dense residential setting, the likely use is similar to ordinary outdoor residential use, and barriers and setback may reduce sound transmission. The Tribunal considered all those matters together (Potential noise impacts, [2]–[5]). The reasons do not establish a numerical noise threshold, nor do they decide the acceptability of materially different uses or unusually intensive activity.
The case also involved retrospective approval for demolition of an older deck and a new deck on a small site affected by a Heritage Overlay (Background information, [3], [11]). A lawyer or planning professional comparing another matter would need to check whether the relevant controls, site context, heritage considerations, levels, dimensions and design are comparable. The judgment itself gives no detailed interpretation of the Heritage Overlay provisions.
The supplied judgment contains no later decisions discussing or applying Pfab v Boroondara CC. It also does not cite a named earlier case. It refers only to previous Tribunal divisions having accepted that potential privacy impacts can include perceived loss of privacy (Potential privacy impacts, [4]). Because no citations are given, the earlier authorities and the precise relationship between them and this decision cannot be identified from the judgment text.
The available material therefore supports no conclusion about whether later courts or tribunals followed, distinguished, limited or questioned Pfab. Such an assessment would require later decisions or other legal sources, which are not included here. The case can be described on this material as a VCAT decision applying a cautious, fact-specific assessment of privacy and noise to a residential deck proposal.
Several matters remain unanswered by the judgment. First, it does not reproduce the content of the planning controls and policies it lists, so it is not possible from this text alone to explain how each provision framed the Tribunal’s powers or the substantive assessment. The relevant provisions are identified as Clauses 12, 14.01, 16.01, 19.03, 21, 22.07, 54 and 65, alongside the Residential 1 Zone and Heritage Overlay (Background information, [11]–[12]).
Second, the decision does not identify the earlier Tribunal cases supporting consideration of perceived privacy loss. It therefore leaves open what qualifications or factual limits those decisions may have contained. The proposition should be attributed cautiously to the Member’s summary, not treated as a complete account of the earlier authorities.
Third, the reasons give no measured prediction of noise levels and do not specify the likely frequency, duration or timing of deck use. The assessment is qualitative and tied to the site context, expected use, setback and barriers (Potential noise impacts, [2]–[5]). The judgment consequently does not resolve how the same reasoning would apply where the proposed activity, acoustic evidence or physical layout differed.
Finally, the Member’s conclusion about the 1.9-metre screen is particular to this site and its sightlines. The judgment does not establish that a 1.9-metre screen is a general standard for elevated decks. Its importance lies in the method shown: identify the potential impact, examine the actual physical relationship between the properties, and assess whether a targeted design change provides a reasonable response.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this information, have a qualified Australian lawyer check it.
Pfab
Boroondara CC [2008] VCAT 387
Council’s decision was affirmed subject to modified permit conditions. Revised plans were substituted by consent. The permit was directed to issue for retrospective demolition of the former deck and construction of the new rear deck. A new condition required amended plans showing the western length of the privacy screen increased from 1.7 metres to 1.9 metres; the rest of the screen could remain unchanged.