Victorian Civil and Administrative Tribunal|2025-05-06

For the reasons above, the decision of the responsible authority is affirmed. A permit is granted subject to conditions.

To construct a building or carry out works in a Neighbourhood Character Overlay

Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and an electronic copy must be provided. The plans must be generally in accordance with the plans submitted with the application (identified as TP01-TP05 as prepared by 'concept 2 completion' with date on plan being 25 October) but modified to show:

(a) A full materials and colour schedule.

(b) South facing first floor skylights to rumpus room to be double glazed.

(c) South facing first floor wall to rumpus room to have an insulated wall panel.

Prior to the endorsement of plans under condition 1 of this permit, the permit applicant/landowner must either lodge a certified plan pursuant to section 23 of the Subdivision Act 1988 to activate changes to the restrictive covenant PS406497C in accordance with the schedule to Clause 52.02 of the Port Phillip Planning Scheme and provide evidence of such to the satisfaction of the responsible authority or the permit applicant/landowner submit the written consent from Mirvac or its nominee for the permitted development to the satisfaction of the responsible authority.

The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

Prior to occupation of the development approved by this permit all new or extended walls on or facing the boundary of adjoining properties and/or a laneway must be cleaned and finished to a uniform standard to the satisfaction of the Responsible Authority. Unpainted or unrendered masonry walls must have all excess mortar removed from the joints and face and all joints must be tooled or pointed also to the satisfaction of the Responsible Authority. Painted or rendered or bagged walls must be finished to a uniform standard to the satisfaction of the Responsible Authority.

Any plant, equipment or domestic services visible from the primary street (other than a lane) or public park must be located and visually screened to the satisfaction of the Responsible Authority.

This permit will expire if one of the following circumstances applies:

(a) The development is not started within two (2) years of the date of this permit.

(b) The development is not completed within four (4) years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing:

before or within 6 months after the permit expiry date, where the use or development allowed by the permit has not yet started; and
within 12 months after the permit expiry date, where the development allowed by the permit has lawfully started before the permit expires.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] (Red Dot) [2015] VCAT 370 at [33] to [34].

[8] It appears that the version of Clause 54 considered by the Tribunal in both Gian and Adams concerned a differently worded provision, applicable before the introduction of the small second dwelling provisions. I make this decision on the basis of the wording of the planning scheme at the date of my decision.
[9] Booth v Strathbogie SC [2023] VCAT 782 at [74] to [82], citing National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited [1976] VicRp 60; [1976] VR 592 and Boroondara City Council v 1045 Burke Road Pty Ltd & Ors [2015] VSCA 27.

[10] As elaborated on in submissions for the Rodgers referencing the Explanatory Report to Amendment VC136.

[11] Viva Energy Australia Pty Ltd v City of Greater Geelong Council & Anor [2023] VSC 586.

[18] The Crawleys' photograph in submission [14].

Environment Act 1987

Rodgers v Port Phillip CC [2025] VCAT 385 (6 May 2025)

In the decision of Adams v Glen Eira CC [2016] VCAT 1353 the Tribunal identified the starting point as being whether the words under the heading 'Requirements' activated consideration of all Clause 54 standards and objectives. In contrast, I consider that it is the words under the heading 'Application' which activate consideration of all of the standards where a permit is required under the Neighbourhood Character Overlay. As such, to achieve an outcome where only particular standards apply, words would need to appear that specifically seek to limit the operation or application of Clause 54.[8]

Rodgers v Port Phillip CC [2025] VCAT 385

At a glance

Court

Decision date

Source

Judgment (24 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)

Rodgers v Port Phillip CC [2025] VCAT 385 (6 May 2025)