There were just the 29 decisions in the Land and Environment division of VCAT in August. By my count, on average each month this year has yielded 31.7 decisions. As comparison, for the first eight months of 2025 my count indicates the average each month was just over 43 decisions… This drop in decision making is of course linked to a drop in the number of matters commencing. VCAT data indicates a 16.4% drop in initiations for FY25/26 compared to the previous year, which was a drop in itself of around 14% from the financial year before. Whether this steady reduction in VCAT matters is a good, bad or ‘something else’ thing is another matter!
But despite the few decisions in August, the second Red Dot decision for the year was issued in Mercoulia v Boroondara CC (Red Dot) [2026] VCAT 607. As is now the case, permit preambles identify the clauses under which permission has been granted and then outline the specific permission granted. In this matter permission was granted under the Heritage Overlay (HO) and Clause 52.37 ‘Canopy trees’. Under the HO three specific permissions were identified, however the Tribunal found that two were exempt from third party review but the third was not which, in the Tribunal’s words:
highlights the complexity of exemptions from review rights if a decision allows multiple permissions or multiple classes of development in a single decision to grant permission and if some of those permissions or some of those classes are exempt from review rights
Notably in respect of a restrictive covenant that applied to the land and its relationship with review right exemptions, the Tribunal also found:
The applicant could not rely on any claim that the decision failed to comply with section 61(4) of the Planning and Environment Act 1987 (Vic) because the claim related to the matters that were exempt and therefore the Tribunal could not review the decision.
The applicant’s claim that an exemption from review rights is in some way subordinate to a registered restrictive covenant, if the decision allowed something that could result in a breach of the covenant, had no merit. The Tribunal said the applicant would need to challenge the decision on judicial review grounds to pursue the claim.
Other decisions of interest last month were:
Chanson v Yarra CC [2026] VCAT 645 concerned the building height exemption within the NRZ and specifically the expression ‘an extension to an existing building’. In this matter, a hybrid 2/3 storey apartment/ townhouse building had been constructed and subsequently subdivided into seven lots. The question asked of the Tribunal was if one of the two-storey townhouses on one of the lots formed part of an existing three-storey building.
The Tribunal found that the term ‘building’ applied to the townhouse proposed to be extended and therefore a three-storey building on the land was prohibited stating:
70. The relevant exemption here applies to ‘an extension to an existing building’. In my view the meaning of these words requires some consideration of the works for which a permit is sought in order to understand what is being extended. In this case the works which comprise an ‘extension’ are primarily confined to the area owned by the applicants and to the land known as 22 Cremorne Street. The building to which the works shown in the plans will be attached is within that site and the building within that site.
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76. If I am wrong about that, I consider that 22 Cremorne Street is also the relevant part of the building, if the building were considered to be 38 Bell Street.
77. As set out above the Council relies on the definition of the word ‘building’ in s 3 of the PE Act which includes, a structure and part of a building or a structure.
78. I agree that it is appropriate to assume that this definition is imported into the words used in the scheme. I have not been taken to any basis on which to conclude that this meaning is intended to be excluded.
79. Again, the application of this exemption requires a factual analysis. For the reasons I have set out above, I consider that the relevant part of the building is either the whole of the part of the building on 22 Cremorne Street or that part of the site formerly known as 38 Bell Street which is now contained within the title of 22 Cremorne Street.
Rossmoyne Group Pty Ltd v Greater Dandenong CC [2026] VCAT 646 acts as a word of warning regarding the need for a car parking plan to the satisfaction of the RA to be provided under Clause 52.06-8 irrespective of whether a permit is required for use/ development. In this matter, a two storey rooming house had been constructed which Council ultimately agreed met the exemption requirements at Clause 52.23. Council, however, advised that the car parking layout did not meet the design standards of Clause 52.06-9 to its satisfaction. In agreeing with the Council, the Tribunal stated:
22. I agree with council that the siting of the accessible car space is not acceptable and does not meet the purpose of clause 52.06 ‘to ensure that the design and location of car parking is of a high standard, creates a safe environment for users and enable easy efficient use’.
23. The necessary manoeuvring to enter the car space occurs across the front property boundary, straddling the footpath, and requires the vehicle to come to a complete stop and turn the wheels to a ‘full-lock’, in order to achieve the required turning movement to access the car space. This is neither easy nor efficient.
24. Significantly, the constrained layout prevents a vehicle from reversing into the accessible car space. Being only able to enter the car space in a forward direction, it restricts the use of the shared area for deploying and utilising mobility aids to a passenger. A driver (or a driver’s side passenger) is unable to utilise the shared space for this purpose. The arrangement does not provide flexibility for use by all occupants of vehicles as required. It does not enable easy and efficient use. It is neither satisfactory nor acceptable.
Antoniou v Monash CC [2026] VCAT 682 concerned the construction of a gate across a common vehicular accessway serving two dwellings/ lots. Notably each lot was above 300sqm in area and the dwellings were constructed at a time when no planning permission was required. The Council argued a permit was required submitting:
The proposed front fence and gate on the common property exceed 1.2 metres and seek to serve, enclose and bound the common property associated with the two dwellings on the parent lot, 2 Neil Court. Contrary to the applicant’s submission, Council is of the view that the fact that part of the front fence and gate are located on common property does not displace the operation of the Clause 32.08-7 permit trigger detailed above.
The trigger does not require the fence to be located on the same title parcel as the dwelling, nor does it state that fences located on common property are exempted from requiring a planning permit. It simply requires the fence to be “associated with” two or more dwellings on a lot. We argue where there is a common property that the fence is to be built on, we can refer to the parent lot of 2 Neil Court that the common property is in service of and was created from.
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The common property was created as part of the subdivision of the land with two dwellings into two lots for each dwelling. This is done to ensure that the dwelling to the rear on Lot 2 does not lose access to Neil Court. The creation of this Common Property as part of the subdivision of the land is implicitly reliant on the subdivision of the parent lot that contained the two dwellings so that the same access rights can be maintained that existed before the subdivision. The common property is therefore a function of the overall parent lot, which contains two dwellings that are located within the parent lot to which the common property services.
The Tribunal disagreed stating:
13.There is no doubt that the exercise of statutory interpretation involves consideration of text, context and purpose. I undertake that exercise below
- Clause 32.08-7 applies to ‘construction and extension of two or more dwellings on a lot, dwellings on common property and residential buildings.
- The separate requirements for dwellings on common property are necessary as common property is excluded from the definition of a ‘lot’ at Clause 73 of the Scheme.
- No specific trigger is identified for fences on common property.
- I am not persuaded that when properly constructed, that the proposed fence and gate across the common property are ‘associated with two or more dwellings on a lot’ for the purpose of this control because each of the dwellings is on an individual lot as described above.
- While the common property driveway serves each of the individual lots, it is not associated with two or more dwellings on a lot.
Lastly, McDonald v Boroondara CC [2026] VCAT 636 is worth a mention for the finalisation of a long running dispute. From an application for review being lodged on October 2023, to a decision in April 2025, and a costs decision in August 2026 it certainly has been a lengthy saga for those involved. The chronology of the complex history to the matter is worth a read for those with some time!
As always, if Glossop Town Planning can be of any assistance with any VCAT matters, please contact either Hew (advocacy) or John (expert evidence) to discuss.