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[2026] VCAT 12
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2026-01-09
Original judgment source is linked above.
[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] Pursuant to section 61(4) of the (Vic), if the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant.
[3] TLC Melbourne Pty Ltd v Banyule CC [2025] VCAT 582
[4] The lower-ground level in the three-storey section is below natural ground in the north-eastern section of the land, with the consequence being the building presents as a two-storey structure.
[5] Clause 73.03 defines this land use term as 'Land used by members of a club or group for leisure, recreation, or sport such as bowling or tennis club, gymnasium and fitness centre. It may include food and drink for consumption on the premises, and gaming. It may also include use by members; guests, or by the public on payment of a fee'.
[6] According to the applicant's submissions, this building is to be used for yoga, pilates and the like.
[7] Pursuant to clause 71.01-1 the MPS sets out the vision for future use and development in the municipality and establishes strategic directions about how the municipality is expected to change through the implementation of planning policy and the Planning Scheme. A responsible authority must take into account and give effect to the MPS when it makes a decision under the Planning Scheme.
[8] Pursuant to clause 71.02-2, the PPF seeks to ensure that the objectives of planning in Victoria (as set out in section 4 of the Planning and Environment Act 1987 (Vic) are fostered through appropriate land use and development planning policies that integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development. A responsible authority must take into account and give effect to the PPF when it makes a decision under the Planning Scheme.
[10] On the northern border of the primary catchment, at 25-31 Banksia Street and 437-439 Lower Heidelberg Road Eaglemont.
[13] Submissions suggested that the former church use ceased operating some 10 years ago.
[14] This is taken as an extract of the evidence and includes the corrected table provided subsequently.
[15] This includes changing the opening hours of the garden terrace to 8.00am on weekdays and 9.00am on Saturday & Sunday.
[16] We further note that part of the outdoor play area for the child care centre is also in this location.
[18] Pursuant to clause 73.02, the term 'display area' is defined as 'The area of that part of a sign used to display its content, including borders, surrounds and logo boxes. It does not include safety devices, platforms and lighting structures. If the sign does not move or rotate, the area is one side only'.
[19] Environment Protection Authority publication 1826
[20] These locations comprise the two adjoining residential properties to the west; the pre-school centre to the south; and two residential properties on the opposite side of Lower Heidelberg Road.
[21] Arboricultural Report, 321 Lower Heidelberg Road, Ivanhoe, John Patrick Landscape Architects Pty Ltd, November 2023
[22] Golden Ash (Fraxinus excelsior 'Aurea')
[23] The arboricultural values have been calculated on the useful life expectancy of the tree which considers the tree's structure and health rating and its significance in the landscape.
TLC Melbourne Pty Ltd
Banyule CC [2026] VCAT 12