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Cited legislation

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The site was a small, narrow parcel: 5.52 metres wide, 32.3 metres deep and 127.2 square metres in area. It contained a single-storey shop and was flanked by single-storey shops. A laneway ran behind the site, with the existing building set back 4.6 metres from it (Reasons, “Subject Land”).

The proposal was for a four-level development. It included demolition at the rear of the existing building, a new shop front and amenities, six storage units and bin storage, and six car spaces in stackers accessed from the rear lane (Reasons, “The Proposal”). The applicant also sought a reduction in the standard car parking requirement and a waiver of the loading-bay requirement. The Tribunal recorded that it amended the application to include those matters (Reasons, “Zoning and other controls”).

Two procedural orders were made without objection. Richard Gijsbers was joined as a party under section 60 of the Victorian Civil and Administrative Tribunal Act 1998. Revised plans, identified as Domvs Design Job No 0669, Sheets TP01 to TP07, Revision C, dated July 2009, were substituted in the application under clause 64(2) of Schedule 1 to that Act (Order, items 1 and 2; Reasons, “Preliminary”).

The Tribunal ultimately affirmed the Council's refusal and directed under section 85(1)(a) of the Planning and Environment Act 1987 that a permit must not be granted (Order, item 3). Its reasons centred on two matters: the development's fit with the immediate streetscape, and the sufficiency of the proposed parking.

Why the court decided this way

The decision was made by VCAT, not a court. The central built-form issue was whether a four-level structure on this particular narrow site was an appropriate response to the surroundings. The Council relied on the Huntingdale Centre outcomes in Clause 22.03-2, which it described as contemplating a low-rise centre, generally up to two or three storeys, while allowing appropriate change. It also argued that this site differed from a larger consolidated site nearby where a fourth level was set back from Huntingdale Road (Reasons, “Criteria for Decision”).

The Tribunal accepted the significance of the immediate context. It acknowledged that another site in the centre might be a better candidate for multi-level development, but concluded that this proposal would create too great a transition. The critical combination was the site's 5.52-metre width, the four proposed levels and the single-storey buildings on both sides. The Tribunal found the proposal out of character in mass, bulk, scale and building form (Reasons, paragraphs under “Criteria for Decision” and “Decision”). Those findings connected the built-form assessment to the actual streetscape rather than treating the permitted use or general activity-centre aspirations as conclusive.

The reasons also compared the proposal with two earlier VCAT decisions. In Peninsula Planning Consultants v Monash CC [2005] VCAT 2381, the Tribunal had granted a permit for a development with three storeys facing Huntingdale Road and student accommodation in a four-storey building at the rear. Senior Member Sharkey noted the different site context and that the fourth level was well set back from Huntingdale Road. The earlier decision therefore did not establish, on the account given here, that a four-level building on this single narrow frontage was suitable (Reasons, “Criteria for Decision”).

The Tribunal also discussed Burgess Associates Pty Ltd v Monash CC [2009] VCAT 1214, which concerned a four-storey proposal on a 6.4-metre frontage in a group of shops. It recounted that the earlier Tribunal had found the proposal unduly bulky in its surroundings and considered that three storeys might be the most acceptable, potentially with greater setbacks. Senior Member Sharkey said the present site was a better candidate for multi-level development than the site in Burgess, but nevertheless found four levels excessive here. The comparison supported a contextual assessment, not a simple rule that every narrow Huntingdale Road site must have the same height limit.

Parking was the second material issue. The proposal included six spaces. The Tribunal considered the submissions about a shop space, dwellings, the applicable scheme controls and the existing informal parking arrangement. It accepted that a space was needed for the shop and concluded that seven spaces would be appropriate. It also noted that Clause 52.06 would require two spaces per dwelling and that a permit was required to reduce that requirement (Reasons, parking discussion). The reasons thus treat the number of spaces as a distinct concern from access and traffic effects.

On traffic, the Tribunal did not accept that the lane would be inadequate. It said that the lane could cater for vehicles parked in the development and that no traffic implications would arise from the proposal (Reasons, parking discussion). Nor did it reject the use of stackers outright. It described them as an accepted method of managing parking and said they would probably be appropriate, while noting that it would want to inspect a similar arrangement, particularly for tandem use, if it were considering granting a permit. The refusal was therefore not based on a finding that stackers or the lane were inherently unacceptable.

Before and after state of the law

This decision is a fact-specific merits determination. It does not purport to change a statutory test, establish a generally applicable height control, or set a universal parking ratio. The Tribunal applied planning scheme provisions and policies that it identified in its reasons, including the Business 1 Zone, Clauses 22.03, 52.06 and 56.02, and the statutory review and order powers in sections 77 and 85 of the Planning and Environment Act 1987.

Before the decision, the Council had refused the permit on grounds that included lack of site responsiveness, excessive mass and scale, traffic and parking concerns, amenity effects and insufficient or inaccessible parking. The Tribunal's determination refined those issues on the evidence and submissions before it. It agreed that the built form was out of character and that six spaces were inadequate. It did not find that traffic effects would arise from the proposed development or that the lane lacked capacity.

After the decision, the operative result for this application was that the Council's refusal stood and a permit must not be granted on the application as amended. The judgment itself does not state that the planning scheme was amended, that a new general precedent was created, or that the outcome determines what height or parking arrangement would be acceptable on other sites. Any broader legal effect should not be inferred from this text alone.

Key passages with plain-English translation

The Tribunal's core built-form statement was: “a four level development on a site 5.52 metres wide, with single storey buildings on either side, would be too great a transition” (Reasons, “Criteria for Decision”). In plain English, the Tribunal considered the particular building too tall and substantial in relation to the narrow lot and its immediate neighbours.

It added that the proposal was “out of character with existing development on this side of Huntingdale Road with regard to mass, bulk, scale and building form” (Reasons, parking discussion). This identifies the dimensions of the design that mattered to its assessment: not merely the number of levels, but the overall visual weight and form of the building in its setting.

On parking, the Tribunal said: “six car spaces would be inadequate, and that seven car spaces would be appropriate” (Reasons, parking discussion). This was its assessment of this proposal after considering the shop, dwellings and parking context. It should not be read as a general rule that seven spaces are required for comparable developments.

The Tribunal also said: “I do not consider any traffic implications would arise from this development. The laneway would be quite adequate to cater for vehicles parked within the proposed development” (Reasons, parking discussion). In plain English, the Tribunal did not consider lane capacity or traffic effects to be the reason to refuse the application, even though it found the proposed parking numbers deficient.

Finally, it described stackers as “an accepted method of management of car spaces” and said they would “probably be appropriate in this situation” (Reasons, parking discussion). The qualification matters: the Tribunal also said it would want to inspect a similar arrangement, especially for tandem use, if it were to consider a permit. The passage is not an unconditional approval of the specific design.

What fact patterns trigger this precedent

The decision is most relevant as a comparison where a planning decision-maker is assessing a multi-level proposal on a narrow commercial site, particularly where low-rise buildings remain on either side and the proposal's height, bulk or setbacks may create an abrupt transition. The specific measurements and surrounding built form were important here. The Tribunal did not reason from height alone: it compared a four-level proposal on a 5.52-metre frontage with the single-storey context.

It may also be relevant where a party relies on a nearby approval as a comparison. The reasons explain why the Tribunal did not treat the opposite-side development as decisive: it had multiple frontages, a different context and a fourth level set back from Huntingdale Road. The comparison illustrates that the details of the approved site and its relationship to the street mattered to the Tribunal's reasoning.

The parking discussion may be useful where a proposal combines existing commercial use with new dwellings, seeks a parking reduction, and relies on stackers or rear-lane access. The decision distinguishes the number of spaces from lane capacity. Here, the Tribunal found six spaces inadequate, considered seven appropriate, and found the lane adequate. A different site, use mix, parking context or access arrangement could lead to a different assessment.

The judgment does not establish that every four-level building in a local shopping centre is inappropriate, that every single-storey streetscape must remain single-storey, or that stackers are always acceptable. The Tribunal's language ties its conclusion to this site's dimensions and immediate surroundings.

How later courts have treated it

The supplied judgment identifies Peninsula Planning Consultants v Monash CC [2005] VCAT 2381 and Burgess Associates Pty Ltd v Monash CC [2009] VCAT 1214 as earlier decisions considered in the reasons. It does not identify any later court or tribunal decisions treating Popper as applied, followed, distinguished or otherwise considered. The later treatment of this decision therefore cannot be determined from the supplied judgment.

The two earlier cases are used by Senior Member Sharkey to compare site context and built form. The judgment describes the development in Peninsula Planning Consultants as having three storeys facing Huntingdale Road and a fourth level at the rear, set back from that road. It recounts that Burgess Associates concerned a different narrow site and an earlier finding of undue bulk. These are the current decision-maker's descriptions of those cases, not a basis here to expand on their reasoning beyond what Popper records.

Still-open questions

The reasons do not determine what alternative design would have been acceptable. The Tribunal said that the proposed four-level form was excessive, but it did not decide an amended proposal involving fewer levels, greater setbacks or other changes. It observed that a three-level development might be acceptable in the centre, and that increased setbacks might be relevant, but those comments were not a permit determination for a redesigned scheme.

The reasons also leave open the detailed assessment of a tandem stacker installation. Senior Member Sharkey indicated that inspection of a similar arrangement would be wanted if a permit were under consideration. The judgment does not record that such an inspection occurred, nor does it make a final technical finding about the particular stacker system's operation.

The parking assessment is tied to the evidence and scheme provisions discussed in the hearing. The decision does not provide a general methodology for calculating parking requirements across other land uses or sites. It does, however, show that the Tribunal considered the shop's parking need and the existing informal space, and then assessed seven spaces as appropriate for this proposal.

Finally, although the Tribunal considered neighbourhood character and relevant planning policies, the supplied reasons do not set out a comprehensive test for resolving every tension between activity-centre development objectives and existing low-rise character. They record the planning considerations applied to this specific application and the reasons the proposal failed in that context.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.