Of note last month, the Tribunal issued the Red Dot decision of Miles v Hobsons Bay CC (Red Dot [2025] VCAT 151 which held that a permit cannot be cancelled on the grounds of a ‘material change of circumstances which has occurred since the grant of the permit’ (being the grounds in section 87(1)(d) of the planning and Environment Act 1988 (Vic) (‘PE Act’)) on request by a person under section 89. The Tribunal found:
73. I construe section 87(3) as meaning that all the grounds in section 87(1) may be relied by the persons specified in paragraphs (a), (c), (d) and (e) in section 87(3), but not by the person specified in paragraph (b). The legislature has limited the grounds available to a person under section 89 to the grounds in section 89(1)(a) or (b). Those grounds do not include the change of circumstances ground.
Otherwise of decisions of interest last month included:
Tran V Darebin CC [2025] VCAT 119 which concerned the refusal of the Tribunal to strike out an objector review in a Commercial 1 Zone. The objector’s main concern was overlooking, however the permit applicant contended that the appeal lacked merit on the basis that the windows and balconies in question were set back in excess of 9 metres from the boundary. The Tribunal noted and the parties agreed that the decision guidelines attached to the C1Z required consideration of overlooking into residential properties and the provisions of Clause 55. As such, the Tribunal stated:
27. The decision guidelines in clause 34.01-8 of the C1Z set out the matters which must be considered, as appropriate. The parties agree that the applicant’s concerns / objection relating to overlooking (and consequent privacy impacts) remain a matter for debate at the hearing on the merits when VCAT considers whether to uphold the responsible authority’s decision to grant a permit. This will include what weight should be given to the respondent’s proposition that the standard for overlooking set out in clause 55 of the planning scheme has been exceeded for the applicant’s property. These are matters for the Tribunal comprised to consider the application for review at the main hearing.
Chen v Maroondah CC [2025] VCAT 124 which concerned an ‘ordinary’ dual occupancy development. As readers would be aware Council’s are required to provide without prejudice permit conditions prior to a Hearing and there can often be contention as to what should be included as a draft Condition 1 item i.e. how far the conditions should go to make the proposal acceptable in the view of the Council. In this matter, it appears Council did not include any draft Condition 1 items. The Tribunal commented on this approach stating:
52. It was not helpful that council’s recommended without prejudice conditions filed with the Tribunal, did not include any changes to the plans, known as condition 1 (amended plans). Whilst I accept council’s position of refusal, I find it unhelpful that there were no suggested changes to the plans as required by condition 1, given council raised a number of failings with the proposed development. It is council’s role to assist the Tribunal, and this may include changes to plans through permit conditions, that may help inform my decision.
125-127 Alexandra Avenue Pty Ltd V Stonnington CC [2025] VCAT 149 concerned a multi-storey apartment building. Council raised concern that the mandatory building height limit was breached due to the presence of planter boxes sitting atop the roof which in its view presented as the parapet. Council submitted:
8.32. The Proposal nominates the building height of 12.85m measured to the front parapet (see North elevation (TP 201)).
8.33. Council does not dispute that the ‘planter’ sits atop the roof. This is demonstrated in the section drawings (see, for example, Section AA on TP301) show the planters sitting on top of the roof of Level 3.
8.34. It is Council’s position that the planter envelops the roof space save for a small gap centrally at the southern end as evident in the ‘snips’ of the elevations below. The planter boxes are permanent and solid structures that forms part of the building. They read as a parapet in their own right. They show a consistent built form to all elevations with a small setback from the edge of the roof level below.
8.35. It is acknowledged that if the planters were viewed as ‘architectural features’ of the building, or a ‘roof top structure’, they would be excluded from the ‘building height’ and the Proposal would not exceed the permissible ‘building height’.
8.36. Council maintains the position that the planters read as the parapet of the building. They have a uniform and modest setback from the measured edge of the roof below parapet and they do themselves present as the parapet of the building. As stated by the Tribunal in Prahran Orrong Park Developments Pty Ltd v Stonnington CC [2017] VCAT 1021 [at 56] the matter is ultimately to be considered as one of fact and degree having regard to the specific roofed element.
The Tribunal in response, with reference to the decision of Aitken Properties Pty ltd V Hobsons Bay CC [2016] VCAT 1484, found:
17. In applying this methodology to the plans that are before us, it is agreed between the parties that the parapet of the proposed building complies with both of the mandatory height limits that apply to the review site. The dispute is in relation to the proposed planter boxes that are proposed to surround the roof decks. We find that the proposed planter boxes do not contribute to the defined height of the building as:
a. The proposed planter boxes are not a roofed element.
b. As conceded in the Council’s written submissions, the planter boxes sit atop the roof, and therefore do not contribute to an understanding of the height of the roof of the building.
c. The planter boxes are also not a parapet as they are set back from and are separate from the defined parapet to the building. They also have a different material and colour from the parapeted walls of the building.
d. The planter boxes are properly considered as a rooftop element, complementing the roof top deck and balustrading that are all commonly understood to not contribute to the defined height of a building.
e. The planter boxes either won’t be seen, or won’t be visually apparent, from many locations in the public realm. As such, the planter boxes are not of such a size or design as to warrant a different approach to the one that we have set out in these reasons.
Casey CC v Banks [2025] VCAT 126 was one of interest for enforcement officers concerning one enforcement application made for two different properties each separately owned but concerning the same subject matter. In short it appears that the two landowners had a relationship and one owner was involved in the storage and repairs of motor vehicles on their land before transferring these operations to the second owners land. The Tribunal requested that Council lodge two separate enforcement applications, however the Council sought review of this through a Practice Day hearing essentially contending the matter was a single course of conduct by a single person, continuing over a period of time on two different lots. The Tribunal, however, was not persuaded that this was the correct approach in part due to the issues of drafting any enforcement order needed, stating:
48. Whilst the cars might be the common denominator in the activity occurring on the Cranston Land and the Sweet Valley Land, these are two separate alleged breaches that should be the subject of separate applications for enforcement order. Much like if there was a parcel of land that was being used for the purposes of a store and the landowner gave the stored items away to three different persons, who then all stored the gifted items on their properties. If, in so doing, those three landowners then found themselves in breach of the relevant planning schemes for using their separate properties each for the purposes of a store, this would need to be pursued as three separate applications for enforcement order. The choice by each landowner to use their respective properties for the purposes of a store for those items was a choice made by each person and each represents a discrete breach, notwithstanding that the items were all sourced from one site. In those circumstances, the Tribunal would expect separate applications for enforcement order to be lodged and not one application that purported to deal with all of the alleged breaches.
James v Darebin CC [2025] VCAT 99 concerned the merits Hearing of the matter commented on in September last year concerning the interpretation of Standard B22. As readers will recall, the Tribunal found that the 1.8m high visual barrier referenced in the last part of the standard needed to be from floor level as opposed to ground level as is commonly applied. In this merits Hearing, the Tribunal also commented on the first part of the Standard which states that habitable room windows and the like “should be located and designed to avoid direct views into the secluded private open space”. The Tribunal commented:
43. At the outset, I agree with the applicants’ submissions that the deck and both ground floor windows have not been ‘located and designed to avoid direct views’ into the SPOS of the applicants’ back yard when assessed in accordance with the methodology described in paragraph 1 of standard B22.
44. In reaching my conclusion I have considered the position, proportion and design of the proposed windows and deck including the degree to which these features are elevated above ground level and their spatial relationship to the applicants’ SPOS including the shed.
45. Although not explicitly stated in its written submissions or reconsideration report, and notwithstanding council’s position that a 1.8m high fence would meet the objective ‘to limit views’, council ultimately agreed in oral submissions during the hearing that the proposed windows and deck have not been located and designed to avoid the direct views described in paragraph 1 of the standard.
46. Having reached the conclusion that the standard is not met at this point in relation to paragraph 1, it follows that the decision guidelines of clause 55.04-6 must be considered before deciding if the overlooking objective is met.
From a merits perspective the Tribunal found:
62. The proposed 1.8m high fence relied upon to obscure views into the existing SPOS would have a relative height of 1.37m and 1.47m above the FFL of the two indoor rooms and deck at ground level respectively. This will achieve good levels of amenity and internal daylight for future occupants of the proposal.
63. However, this response would result in a significant increase in available views into the applicants’ SPOS, particularly from proposed indoor areas, compared to those presently available above the existing (average) 1.66m boundary fence height.
64. On balance, I find the extent to which views would occur into the applicants’ SPOS from the two windows, and to a more limited extent the deck, would cause a significant increase in overlooking.
65. This would create unreasonable impacts on the visual privacy and amenity of the applicants’ SPOS.
66. Having considered the decision guidelines, I conclude that the overlooking objective would not be met with a 1.8m boundary fence measured above existing ground level.
Lastly, Wijesinghe v Greater Geelong CC [2025] is worth a read for those who enjoy VCAT decisions concerning an applicant who clearly had gripes with Council’s refusal of their application. After having bombarded Council’s planning department with emails and gone through all of Council’s internal complaints processes available, the permit applicant ultimately lodged an application for review with the Tribunal some 175 days after Council’s refusal notice was issued. It probably doesn’t spoil the story to say that the Tribunal refused an extension of time to lodge the application for review.
If Glossop Town Planning can be of any assistance with any VCAT matters, please contact either Hew (advocacy) or John (expert evidence) to discuss on 03 9329 2288.
