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[2008] VCAT 2253
respondent. Tribunal affirmed the Responsible Authority's decision to grant the permit; directed pursuant to s.85(1) that a permit be issued for construction of two double-storey dwellings at 17 Florence...
The Tribunal dismissed neighbours' objections and upheld the council's grant of a permit for two double-storey dwellings. The Tribunal found the design complied with the Minimal Change Area policy and ResCode standards. It held there would be no unreasonable overlooking or significant overshadowing of the neighbouring rear yard and that the Tribunal could not impose privacy protections beyond those in clause 55. The complaint that the applicant sought the permit to increase sale value was not a valid planning ground.
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1,896 words · generated 11/07/2026
A permit application was lodged with Glen Eira City Council on 20 February 2008 for construction of two side-by-side, double-storey dwellings at 17 Florence Street, Ormond, on a 561m2 lot occupied by a single-storey weatherboard dwelling. Neighbours immediately to the rear (the applicants in the VCAT review, Mr Reynolds and Ms O'Kane of 15 Wallan Road) objected to the grant, asserting the proposal was too close to the rear fence, would be unsightly and obtrusive, would cause overlooking into their rear yard and rear rooms, would overshadow and reduce daylight to their secluded private open space, and that the permit applicant intended to sell the allotment with an approved permit to make a profit (a ground of objection founded on the applicant's commercial motive). The council granted the permit on 27 June 2008 with conditions, including the imposition of increased rear setbacks (an additional 0.5m to the north, producing rear setbacks at ground level of 5.46m/6.41m and first-level setbacks of 9.66–10.5m) and a screening condition requiring the upper-level rear bedroom windows to be screened to 1.7m above finished floor level (condition drawn from clause 55 standard B22 concerns). The objectors sought review in VCAT under s.82 of the Planning and Environment Act 1987. At the hearing before Senior Member Richard Horsfall the Tribunal heard submissions (oral reasons delivered at the hearing) and affirmed the council's decision, directing that a permit issue in accordance with the council's endorsed plans and the conditions in the notice of decision (Order and Reasons, VCAT, 6 November 2008).
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The Tribunal’s reasoning rests on application of the planning scheme controls relevant to neighbourhood character, overlooking and overshadowing, principally the Minimal Change Area policy under clauses 21.04 and 22.08, the Residential 1 Zone schedule, and clause 55 (ResCode), in particular Standards B21 (overshadowing) and B22 (overlooking).
Neighbourhood character / unsightliness: the Tribunal accepted the council's assessment that the proposal was a modest, well-articulated two-storey response appropriate to a Minimal Change Area and that it respected the existing and preferred character. The Tribunal noted the design articulation, modest overall heights, and setbacks (including the Council’s imposed additional rear setback) which exceeded the amended schedule requirement; accordingly it concluded the building would not be unsightly or obtrusive when viewed from the rear garden or from windows of the neighbouring property (see Tribunal finding that the proposal “satisfied the objectives of the Minimal Change Area Policy” and was “well set back” [6]). This factual-planning assessment carried weight because the council had tested the proposal against the scheme and imposed conditions.
Overlooking and screening: the Tribunal turned to clause 55.04-6 (Standard B22). It emphasised the threshold operation of that standard: screening is only required where there is a direct view into a secluded private open space or habitable room window within a horizontal distance of 9 metres measured from 1.7m above floor level. The Tribunal found the upper-level rear windows were set back more than 9 metres from the rear fence, and thus, strictly applying the clause, screening would not have been required. Council nonetheless required screening to 1.7m and the permit applicant did not challenge that condition. The objectors sought full obscure glazing above 1.7m; the Tribunal held there was no authority in the planning scheme or tribunal precedent to impose protections in excess of those in the clause and observed the settled principle that once the clause's standard is met, the objective of preventing unreasonable overlooking is deemed satisfied. The Tribunal therefore found no justification to impose additional screening and made a separate factual finding that there would be no unreasonable overlooking in this case.
Overshadowing and daylight: the Tribunal examined shadow diagrams prepared for 22 September (the equinox), discussed shadow positions at 9.00am and 3.00pm and extrapolated midday, and concluded that shadows from the proposed dwellings would not extend beyond the common fence line into the rear yard of 15 Wallan Road. Applying clause 55.04-5 (Standard B21), the Tribunal concluded there would be no significant overshadowing of secluded private open space or habitable room windows on 22 September, and little intrusion even in mid-winter. The Tribunal also noted that "loss of daylight" is not itself a separate ground in the planning scheme distinct from the clause 55 objective, and that the proposal would not cause unreasonable visual bulk or intrusion into 'skyspace'.
Applicant motive: the Tribunal dismissed the argument that the applicant's intention to sell with an approved permit was a valid planning ground for refusal. It observed that the Act and planning scheme do not authorise taking a commercial objective into account, and that obtaining permits for sale is lawful and commonplace market activity. The Tribunal characterised this objection as irrelevant to the planning merits.
Bringing these strands together, the Tribunal concluded the council’s assessment was correct and affirmed the permit grant.
Before this decision, the applicable legal framework was unchanged: ResCode (clause 55), the council policies (Minimal Change Area policy) and the Residential 1 Zone schedule governed the assessment. The Tribunal’s decision does not establish new law in the sense of creating novel doctrine. Rather it applies established principles:
It reiterates that clause 55 standards operate as measurable, determinative benchmarks for issues of overlooking and overshadowing and that, upon compliance, the objective is satisfied (so long as other planning considerations do not interpose).
It reaffirms that VCAT will not impose conditions or protections beyond those authorised by the planning scheme absent a clear planning basis.
It confirms that commercial motive of an applicant is not a valid planning ground.
After this decision: practitioners can rely on the Tribunal's reaffirmation that compliance with clause 55 standards, and council analysis under neighbourhood character policies, will ordinarily be determinative of overlooking/overshadowing and visual bulk objections; Tribunal will be reluctant to enhance privacy protections beyond clause 55 without a sound planning ground. The decision is procedural and fact-specific; it does not alter statutory tests but is a clear statement of the Tribunal's approach to these common grounds of objection.
Passage: "This modest side by side double storey 2 dwelling proposal ... satisfied the objectives of the Minimal Change Area Policy ... Its siting and design were respectful and responded positively to the interfaces with adjoining properties..." (Reasons, para 6). Plain-English: The Tribunal agreed with council that the proposal fits the local policy for modest change areas; its shape, height and placement are appropriate and respectful of neighbouring properties.
Passage: "It will immediately be observed that screening is only required ... if the view ... was within a horizontal distance of 9 metres. The windows are set back more than this distance ... and the clause ... would not require any screening at all ..." (Reasons, Overlooking). Plain-English: The privacy rule (clause 55) only needs screening for windows that are within 9 metres; here the windows are further back, so under the rule no screening would be needed.
Passage: "I also make a separate finding that in this case there will be no unreasonable overlooking of the applicants' rear garden or windows." (Reasons). Plain-English: Independently of the technical compliance with the rule, the Tribunal found that neighbours will not be unreasonably overlooked.
Passage: "I agree ... that no overshadowing ... is likely to occur on 22 September and ... it is unlikely that between 9.00am and 5.00pm in mid winter that much shadow will protrude further than the fenceline..." (Reasons). Plain-English: The shadow diagrams show the new houses will not cast meaningful shadows into the neighbour's garden on the standard test day, and even in winter shadows should not reach significantly into the neighbour's yard.
Passage: "There is nothing in the Planning and Environment Act 1987 or in the planning scheme which authorises the tribunal to take such a course of action into account ... It is a legitimate commercial activity..." (Reasons). Plain-English: The fact someone wants to sell a property with a permit is not a reason for refusing planning permission; it is lawful and not prohibited by the planning rules.
This decision is most directly instructive where:
A modest two-dwelling, two-storey development is proposed in a Residential 1 zone subject to a Minimal Change Area policy and the council has assessed the proposal against clause 55 (ResCode) and zone schedule requirements.
The neighbour's objections focus on visual bulk/obtrusiveness, overlooking from upper-level windows, overshadowing of secluded private open space, or allegations that the applicant seeks a permit for commercial sale.
The proposal meets or exceeds clause 55 standards for setbacks and the shadow diagrams show non-material overshadowing on the equinox (22 September).
In such scenarios, Reynolds v Glen Eira CC (No.2) shows VCAT will give weight to measurable compliance with clause 55 and policies and will not extend privacy protections beyond the express standards without a clear planning basis.
This decision is a factual, Tribunal-level decision applying the planning scheme. It has not overruled or reinterpreted statutory tests. It is likely to be cited in subsequent VCAT files for the proposition that (i) clause 55 standards, when met, satisfy the objective of preventing unreasonable overlooking; (ii) the Tribunal will not impose protections beyond those standards; and (iii) an applicant's commercial motive is not a planning ground. Practitioners should treat Reynolds as persuasive within Victoria for routine ResCode disputes about screening, setbacks and overshadowing, but remember that each case turns on its facts: differing site constraints, angles of view, or exceptional amenity impacts may lead later Tribunals to different outcomes.
Margin for 'unreasonable' overlooking beyond clause 55: Reynolds reiterates that compliance with Standard B22 deems the objective satisfied, but it leaves open the contours of when a Tribunal might properly impose additional privacy measures where there are factors not captured by the 9-metre/1.7m formula, for example where particular site geometry, levels, or intensities of use create unique privacy impacts. The decision emphasises the default rule but does not exhaustively delimit exceptional circumstances.
Interaction between neighbourhood character policies and site-by-site discretion: Reynolds accepted council's character assessment. The decision does not comprehensively analyse how to resolve genuine tensions where a proposal complies numerically with ResCode but departs from locally articulated neighbourhood character in ways not reducible to clause 55 metrics.
Evidence sufficiency for overshadowing: the Tribunal accepted shadow diagrams and interpolation to midday. Future disputes may raise issues about the sufficiency, scale, or accuracy of shadow diagrams, particularly where mid-winter overshadowing is asserted. Reynolds shows acceptance of standard practice but does not set a rigorous evidentiary standard beyond that used in the file.
Conditions imposed by responsible authorities: the Tribunal noted council imposed a screening condition even though the clause would not require it. The Tribunal did not disturb that condition because the permit applicant did not appeal it. The decision leaves open the precise circumstances in which the Tribunal will remove or modify conditions that are more onerous than scheme standards when the permit applicant contests them.
Practitioners should apply Reynolds as a clear statement of VCAT's approach to clause 55 compliance and to objections based on applicant motive, but should also prepare fact-specific evidence where impacts fall in borderline areas not neatly captured by clause 55 criteria.
Application for review under section 82 Planning And Environment Act 1987 against grant of permit, Glen Eira Planning Scheme, two side by side two storey dwellings on a lot, overlooking, overshadowing, loss of daylight, permit applicant planning to sell property, intrusiveness and loss of privacy
Reynolds v Glen Eira CC (No. 2) [2008] VCAT 2253
Oral reasons for the decision were given at the hearing.
Construction of two double storey dwellings on a lot.
Clause 32.01 - construction of two or more dwellings
Clauses 12, 14.011, 15.12, 16.02, 19.03, 21.04, 22.08, 55 and 65 section 84B Planning and Environment Act 1987
The land is located on the south side of Florence Street, Ormond, about 5 houses east of the corner of Wild Cherry Road. It is regular in shape and has the following dimensions:
and has a slight fall of about 1 metre from west to east.
The site is currently occupied by a single storey weatherboard dwelling.
Proposal unsightly and obtrusive and should be sited further back from the back fence
To limit views into existing secluded private open space and habitable room windows.
A habitable room window, balcony, terrace, deck or patio should be located and designed to avoid direct views into the secluded private open space of an existing dwelling within a horizontal distance of 9 metres (measured at ground level) of the window, balcony, terrace, deck or patio. Views should be measured within a 45 degree angle from the plane of the window or perimeter of the balcony, terrace, deck or patio, and from a height of 1.7 metres above floor level.
A habitable room window, balcony, terrace, deck or patio with a direct view into a habitable room window of existing dwelling within a horizontal distance of 9 metres (measured at ground level) of the window, balcony, terrace, deck or patio should be either:
❒ Offset a minimum of 1.5 metres from the edge of one window to the edge of the other.
❒ Have sill heights of at least 1.7 metres above floor level.
❒ Have fixed, obscure glazing in any part of the window below 1.7 metre above floor level.
❒ Have permanently fixed external screens to at least 1.7 metres above floor level and be no more than 25 per cent transparent.
Obscure glazing in any part of the window below 1.7 metres above floor level may be openable provided that there are no direct views as specified in this standard.
To ensure buildings do not significantly overshadow existing secluded private open space.
Where sunlight to the secluded private open space of an existing dwelling is reduced, at least 75 per cent, or 40 square metres with minimum dimension of 3 metres, whichever is the lesser area, of the secluded private open space should receive a minimum of five hours of sunlight between 9am and 3pm on 22 September.
If existing sunlight to the secluded private open space of an existing dwelling is less than the requirements of this standard, the amount of sunlight should not be further reduced.
Before deciding on an application, the responsible authority must consider:
❒ The design response.
❒ The impact on the amenity of existing dwellings.
❒ Existing sunlight penetration to the secluded private open space of the existing dwelling.
❒ The time of day that sunlight will be available to the secluded private open space of the existing dwelling.
❒ The effect of a reduction in sunlight on the existing use of the existing secluded private open space.
[1] Application under section 82 Planning and Environment Act 1987 for review of a decision to grant a
[2] Permit/Permit application no. GE/PP-20345/2008
Reynolds
Glen Eira CC
Tribunal affirmed the Responsible Authority's decision to grant the permit; directed pursuant to s.85(1) that a permit be issued for construction of two double-storey dwellings at 17 Florence Street, Ormond in accordance with endorsed plans and containing the conditions set out in the Council's notice of decision dated 27 June 2008; Ms O'Kane joined as a party by consent.