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[2001] VCAT 748
appellant. Application for review 2000/076849 allowed; Responsible Authority directed to issue a permit for buildings and works at 15-17 Natalia Avenue, Oakleigh South, subject to specified conditions...
The Tribunal allowed the applicant's review of Monash City Council's refusal and ordered a permit for landscaping changes, reconfigured parking and a 2.4 metre brick fence at an existing timber yard in an older industrial area. The Member concluded that the proposed works would improve the site and contribute to the Garden City Character, that the fence would not adversely affect neighbours if planting were provided, and that the parking and access arrangements were practical and safe. The permit was directed to issue subject to specified plan, landscaping and construction conditions.
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Plan Printing & Drafting Pty Ltd (and associated site operators) sought approval for buildings and works at a timber yard and peripheral sales site at 15-19 Natalia Avenue, Oakleigh South. The works proposed were modest alterations: reshaping and additional car parking spaces on the western lot, reconfiguration of car parking in front of the main storage and sales building (including one disabled space), associated landscaping, and construction of a 2.4 metre high brick fence along the Foran Grove frontage (Reasons [6], [6(a)-(c)]). The Responsible Authority (Monash City Council) refused the application, identifying three grounds: the reduction in landscape beds, the increase in brick wall along the frontage, and the provision for direct access to car spaces from the road raising safety concerns (Reasons [8]).
1 cited instrument linked from this judgment.
At the time of the review the site sat in an Industrial 1 Zone and was subject to a Design and Development Overlay (Schedule 1) under the re-formatted Monash Planning Scheme (gazetted 16 November 2000). The DDO schedule set out building and car park setbacks, and specific fencing requirements for front setback areas, including that a fence must be no higher than 2 metres and must be screened by trees and shrubs between the front property boundary and the fence (Reasons [9]). Clause 43.02-2 was noted by the Tribunal as allowing the grant of permits not in accordance with the schedule where the schedule does not otherwise restrict such departures (Reason [10]).
The Tribunal, Member Jeanette G Rickards, heard evidence including a traffic engineer witness and submissions from both parties. The Tribunal concluded the proposed works, when assessed in the context of the existing older industrial area (characterised by little or no nature strips and limited landscaping), would enhance the site and contribute positively to the Garden City Character required by the scheme; the 2.4 metre brick fence would not adversely impact surrounding properties if planting were provided; and the parking and access arrangements were functioning satisfactorily and were unlikely to create safety issues (Reasons [14]-[22]). The Tribunal allowed the application for review and directed the Responsible Authority to issue a permit subject to conditions specifying amended plans, landscaping requirements, construction and parking standards, and permit expiry times (Order).
The Member’s reasoning turns on application of the planning scheme provisions to the particular facts and on evaluative balancing of scheme objectives with site realities.
Site context and incremental improvement: The Tribunal placed weight on the existing characteristics of the locality, an older industrial area with minimal landscaping, and the likelihood that the site would not be redeveloped in the near future (Reason [19]). Given this, the Tribunal considered that expecting strict compliance with the Responsible Authority’s "desired future character" standards for every incremental application would be unduly rigid. Instead, the Tribunal evaluated whether the proposed works would in fact improve the current situation. It concluded they would (Reason [19]).
Overlay provisions and discretion: The Tribunal expressly noted clause 43.02-2 of the planning scheme, which provides that a permit may be granted not in accordance with the requirements of a schedule unless the schedule specifies otherwise (Reason [10]). That statutory feature operates as a practical gateway allowing the Tribunal to depart from numerical overlay prescriptions where a holistic planning assessment, taking into account decision guidelines and broader scheme objectives, justifies it.
Fencing: Although the DDO schedule states a fence must be no higher than 2 metres, the Tribunal accepted a 2.4 metre brick fence in these circumstances because it would not impact surrounding properties and the Applicant proposed planting in front of the wall to achieve the overlay’s intent to screen fences and contribute to garden character (Reason [20]). The Tribunal suggested cooperative measures (planting in the road reserve, creepers on the wall) to secure the overlay's objectives even if strict dimensional compliance was not achieved (Reason [20]).
Traffic and safety: The Responsible Authority’s traffic safety objections were not upheld. The Tribunal accepted the evidence and observations that traffic moved slowly in the area, that pedestrians were primarily those going to and from cars, and that the existing parking arrangement had operated satisfactorily. On that factual foundation the Tribunal found the proposed parking and access changes practical and unlikely to create conflicts, so safety concerns did not justify refusal (Reasons [17], [21], [22]).
Taken together, the Tribunal applied the planning scheme's decision-guidelines and the permissive discretion in clause 43.02-2 to conclude that, as a matter of planning judgement, the departures from overlay particulars were acceptable because the proposal advanced the scheme's objectives in the actual site context.
Before this decision, the planning framework in Monash prescribed a "Garden City Character" and detailed requirements in the Design and Development Overlay Schedule 1 for setbacks, landscaping and fencing. The Responsible Authority sought to enforce those standards with some rigidity.
This Tribunal decision does not create new law but exemplifies the established planning practice that decision-makers must apply scheme objectives contextually, using the discretion available in overlay provisions. The decision confirms two practical points within the Victorian planning framework as applied here:
After this decision, practitioners can point to the Tribunal's approach as an illustration of balancing overlay prescriptions with practical considerations: departures that are modest and that can be mitigated by other measures (e.g. planting) can be acceptable where they demonstrably improve the site and do not create adverse amenity or safety impacts.
Reason [10]: "Clause 43.02 - 2 ... provides a permit may be granted not in accordance with the requirements of the schedule unless the schedule specifies otherwise." Plain English: The planning scheme expressly allows decision-makers to issue permits that do not exactly match the overlay's numeric rules, unless the overlay explicitly forbids such exceptions.
Reason [19]: "It is considered that given the nature of the area what is proposed will enhance what currently exists." Plain English: Because the area currently lacks landscaping and is an older industrial zone, the proposed changes would make the site better than it is now, even if they do not meet all overlay guidelines.
Reason [20]: "The brick front fence will not impact on the surrounding properties and ... planting in front of the wall would contribute to the desired Garden Character." Plain English: Even though the fence is taller than the guideline, it will not harm neighbours, and if plants are put in front of it the fence will still help achieve the green, gardened look the scheme wants.
Reason [21]: "The car parking in the front of the site appears to work satisfactorily." Plain English: The existing front car parking functions well in practice, so changing it is not likely to cause problems.
Reason [22]: "The proposed changes regarding access of vehicles and egress ... appears practical and unlikely to create any conflicts." Plain English: The revised entry and exit arrangements for vehicles are reasonable and not likely to cause safety or traffic problems.
This decision is most directly relevant where:
Practitioners should present clear factual evidence of on-site operation, local traffic conditions, and feasible mitigation (planting, maintenance conditions) to persuade a decision-maker to use similar discretion.
This deep dive is confined to the present judgment and the treatment within it. The judgment itself does not cite higher court authority or subsequent treatment. The Tribunal’s reasoning is pragmatic and tied closely to the planning scheme instruments and site facts. For subsequent treatment, practitioners must locate later VCAT or court decisions that reference this case; this decision functions as a tribunal-level example of applying clause 43.02-2 discretion and balancing scheme objectives against site context. The judgment contains no citations of later cases or of higher court perusal within the text, so no direct statements about later judicial treatment can be offered from this source.
Extent of permissible departure: The Tribunal accepted a fence 0.4 metres higher than the DDO guideline. The decision does not define the upper bounds of acceptable departure or provide a quantitative test for when deviation becomes unacceptable. Future cases may need to delineate where the line is drawn.
Public domain planting obligations: The Tribunal suggested planting in the road reserve or creepers on the wall as solutions (Reason [20]). It did not resolve liability, maintenance obligations, or precise legal mechanisms for planting outside the property boundary. Those practical and legal arrangements remain to be clarified in other cases or RA policies.
Enforcement interplay: The Responsible Authority had an enforcement application (2000/038738) adjourned pending the outcome of this review (Reason [2]). The judgment does not explore how the grant of a permit in these terms affects enforcement allegations about development contrary to an earlier permit; procedural consequences would need separate resolution.
Weight to desired future character: The Tribunal applied a contextual, incremental improvement approach to the desired future character. The circumstances under which a tribunal or a council should insist on full compliance with desired future character versus accepting incremental improvements remain factsensitive and open to further judicial elaboration.
Precedential weight: As a single-member VCAT decision, this is persuasive but not binding on other tribunals or courts. The degree to which other members or courts will follow this balancing approach in different planning contexts (e.g. residential neighbourhoods, heritage precincts) is unsettled and fact-specific.
Practical takeaway: where measurable overlay standards are not met, demonstrate tangible on-site improvement, mitigation measures, and operational safety via evidence; point to clause 43.02-2 and relevant decision guidelines; and be prepared to negotiate practical landscaping measures (including public realm planting agreements) to bridge policy-objective gaps.
Section 77 Planning & Environment Act 1987 - Refusal - brick fence and landscaping - Monash Planning Scheme - Industrial zone - Design & Development Overlay - Garden City Character -
3. The Responsible Authority is directed to issue a permit for Buildings and Works at 15 - 17 Natalia Avenue, Oakleigh South subject to the following conditions:
1. Before the development commencement amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the permit. The plans must be drawn to scale and dimensions and three (3) copies provided generally in accordance with Plan Ref: 00 0042 May 2000 but modified to show:
(a) location and details of proposed species of planting on the subject land.
(b) details of proposed planting within the road reserve.
2. Any landscaping to the satisfaction of the Responsible Authority in the road reserve is to be undertaken and maintained at the cost of the permit holder.
3. Landscaping works as shown on the endorsed plans must be completed within six months from the date of this permit to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.
4. Before development commences areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:
(a) constructed to the satisfaction of the Responsible Authority;
(b) properly formed to such levels that they can be used in accordance with the plans;
(c) surfaced with an all-weather sealcoat to the satisfaction of the Responsible Authority;
(d) drained, maintained and not used for any other purpose to the satisfaction of the Responsible Authority;
(e) line-marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority.
Parking areas and access lanes must be kept available for these purposes at all times.
5. 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.
________________________
For the Applicant for Review: Mr J Cicero, Best Hooper, Solicitors
For the Responsible Authority: Mr N Crawford, Maddock Lonie & Chisholm, Solicitors
1. Application 2000/076849 is an application for review of the decision of the Monash City Council to refuse to grant a permit for buildings and works associated with an existing timber yard and peripheral sales at 15 - 19 Natalia Avenue, Oakleigh South.
2. The Responsible Authority also has an application before the Tribunal, 2000/038738, for an enforcement order relating to the use and development of the subject land contrary to planning permit 24318. At the commencement of the hearing the parties indicated they would not put submissions in relation to this issue before the Tribunal but would await the outcome of the present application.
3. The subject site is described as having an area of approximately 18,336 square metres. It is an irregular shaped allotment situated on the north side of Natalia Avenue with a frontage to Natalia Avenue of approximately 115 metres and a frontage to Foran Grove of approximately 60 metres.
4. The land is located within an industrial area with the majority of properties in Natalia Avenue being used for industrial/commercial purposes. The site which contains a number of buildings is used for the purpose of a "timber yard and peripheral sales with associated car parking and landscaping pursuant to planning permit 24318 issued on 22 July 1998.
The western lot with a total site area of approximately 3219 square metres contains a single galvanised iron shed and has recently had constructed 20 car parking spaces pursuant to planning permit TPA/24318 issued in February 2000.
The lot immediately adjoining this lot has a site area of approximately 5,103 square metres and is occupied in the main by a single galvanised building which is used for storage and sales. Vehicle access to this building is obtained from two entrances off Natalia Avenue and the building has exit points on its eastern elevation.
This building is in part set back approximately 8 metres from Natalia Avenue.
One portion approximately 16 metres long abuts the street frontage.
Further to the east there is an area approximately 2,917 square metres which is used for open storage. This also has an amenities and storage building and a brick building also used for storage.
The remaining area totalling approximately 7,208 square metres contains two large open steel storage sheds basically used for the storage of timber. Access to this part of the site is from the intersection of Natalia Avenue and Foran Grove.
6. The following buildings and works are proposed:
(a) Landscaping and rearrangement of car parking spaces on the western most lot so that a total of 4 car parking spaces (an additional 2) are provided.
(b) Rearrangement of the car parking spaces in front of the substantive building used for storage and sales to accommodate 5 car parking spaces and a disabled car parking space and associated landscaping.
(c) Construction of a 2.4 metre high brick fence along the frontage of the site to Foran Grove.
7. The plans endorsed to planning permit 2138 show the following:
(a) In relation to the western most lot, a reduced landscaping strip and 2 car parking spaces only.
(b) In relation to the substantive building, a landscaping strip of 3 metres along the frontage and 2 disabled car parking spaces behind this landscaping strip.
(c) Along the frontage to the site to Foran Grove a 3 metre wide landscaping strip.
8. The Responsible Authority refused to treat the changes as amendments and a fresh permit application was made. This application was refused on the following grounds:
1. The reduction in the landscape garden beds is inappropriate.
2. The increase in brick wall along the frontage is inappropriate.
3. The provision for direct access to car spaces from the road is inappropriate and does not provide for safe vehicle movement.
9. The subject land is now located within an Industrial 1 zone (clause 33.01) and subject to a Design and Development Overlay (clause 42.02) pursuant to the new format Monash Planning Scheme gazetted on 16 November 2000. Under both clauses a permit is required for buildings and works. Clause 2, Schedule 1 to the Design and Development Overlay refers to Building and car park setbacks and to Fences in front setback areas being in relation to the subject land 7.6m. In relation to a fence the clause states:
* Screened by trees and shrubs planted between the front property boundary and the fence.
* Designed to reflect the style, materials and common characteristics of fences in the neighbourhood.
* Painted a visually recessive colour. Unpainted galvanised steel or wire fencing is not acceptable.
10. Clause 43.02 - 2 of the planning scheme provides a permit may be granted not in accordance with the requirements of the schedule unless the schedule specifies otherwise. There is no such restriction within the schedule.
11. The following clauses within the State Planning Policy Framework, Municipal Strategic Statement and Local Planning Policy Framework are considered relevant to this proposal. They are:
Clause 22.03 Industry and Business Development and Character Policy
12. As well as the decision guidelines set out in clause 65 of the Planning scheme, clause 3, Schedule 1 to the Development Design Overlay provides the following relevant decision guidelines:
* Whether the development is consistent with the desired future character statement for the applicable industry or business Character Type identified in Clause 22.03.
* Whether side and front fences are in keeping with the character of the neighbourhood.
* Whether the landscape treatment in the side and front setbacks contributes to the Garden City Character.
13. The Responsible Authority submitted that the design objectives of the Development Design Overlay is supported by the policy. Clause 21.01 of the Municipal Strategic Statement refers to the Garden City Character with the vision to encompass industrial uses and is said to form a central component of land development especially when considering aspects such as setbacks of buildings and location of car parks and access ways.
14. The subject site is located in Industry Character Type 2 Area within clause 22.03 which identifies the area as being dominated by its industrial land use as well as there being generally no nature strips in the Oakleigh Industrial area. The desired character for the area includes:
Redevelopment including landscaped setbacks, should allow the progressive improvement of the aesthetic quality of the industrial area
15. The Responsible Authority submitted what was proposed in terms of landscaping and car park layout was inappropriate and inadequate having regard to the Garden City character. In this respect it was submitted the landscaping was piecemeal particularly the break up of 10 - 15m intervals between the garden beds which it is suggested would not offer visual relief. The proposed brick fence was also higher and closer to the street frontage than recommended.
16. The Applicant submitted that the previous requirement of 3m planting along the Foran Grove frontage was impractical as it would not allow for sufficient manoeuvring of trucks wishing to load and unload in this area. The Applicant proposed that it could contribute to planting along the front of the brick fence, outside the site as there was no walkway in this area and pedestrian traffic was minimal. This it was said would contribute to the promotion of the Garden Character within this old industrial area.
17. In the Responsible Authority's view the provision of 6 car spaces on the street frontage did not accord with the policy which sought to minimise parking, traffic and pedestrian impacts in this area. Although it indicated it did not have any problems with the positioning of the proposed access and egress it did consider there would be possible safety issues with regard to pedestrians and vehicles. It was submitted by the Applicant that parking in the front of the building has been operating for some time and appeared to operate satisfactorily.
18. Both the Applicant and Responsible Authority recognised that the car park provided to the west was under utilised. A change is proposed in this area with an additional two car spaces in tandem which could certainly be used by staff enabling an extended landscaping strip.
19. This site located in what is termed the older industrial area has virtually no landscaping it is considered that what is proposed will enhance the site and contribute to the area. It was suggested that it was unlikely that this site would be redeveloped in the near future, it is therefore difficult in the Tribunal's view to impose the full force of the Responsible Authority's desired future character of the area in the present circumstances. It is considered that given the nature of the area what is proposed will enhance what currently exists.
20. The brick front fence will not impact on the surrounding properties and the Tribunal considers the proposal by the Applicant to carry out some planting in front of the wall would contribute to the desired Garden Character of the area. The Responsible Authority should give serious thought to working with the Applicant to carry out some planting in front of the wall. If reluctant to do this it may be that the Applicant could consider a creeper on the wall itself which could contribute to a greening of the area.
21. The car parking in the front of the site appears to work satisfactorily. Traffic within the area appears to move at a relatively slow pace and the only pedestrians appear to be persons going to and from their vehicles. It is not considered that vehicles reversing from these spaces will conflict with the use of a fork lift in the area or result in a safety problem, views are not impeded.
22. The proposed changes regarding access of vehicles and egress of vehicles into the site appears practical and unlikely to create any conflicts upon entry or exit.
23. For the above reasons the Tribunal will allow the application for review and direct a permit issue for buildings and works subject to conditions.
_____________________________
Plan Printing & Drafting Pty Ltd
Monash CC [2001] VCAT 748
Application for review 2000/076849 allowed; Responsible Authority directed to issue a permit for buildings and works at 15-17 Natalia Avenue, Oakleigh South, subject to specified conditions including amended plans, landscaping, construction and parking conditions, and permit expiry timeframes (Order).