Collie recently represented a client who proposed the development of three two-storey houses in a court in Doncaster East, replacing an existing 1960s style single storey house.  The application had attracted a number of objections from residents within the court as well as from the rear of the property.  Despite those objections, Manningham City Council approved the application.

The objectors appealed the decision and the matter proceeded to VCAT for a hearing in early 2011.

The proposal involved the construction of three larger two-storey houses, one at the front and two at the rear, taking advantage of the shape of the property, which being located at the head of a small court, had a curved, narrow frontage broadening out at the rear.

Although the property is relatively close to a small shopping centre on a main road (about 500 metres walk), it is in the Residential 3 Zone – rather than the Residential 1 Zone which applies to land closer in to shopping centres and the like.

The Residential 3 Zone varies the ‘ResCode’ requirements to require open space areas to each house to be greater in area and dimension than the standard requirements.  While this has an impact on the density of development, it is noted that a lower density is also encouraged by two local policies in particular:

  • The ‘Residential’ Policy (Clause 21.05) which places the site in an area designated as “Precinct 1 – Residential Areas removed from Activity Centres and Main Roads” in which only an “incremental level of change is anticipated” with increased areas of open space for planting and retention of trees to achieve a less intense urban form.
  • The “Dwellings in a Residential 3 Zone” Policy (Clause 22.15) which encourages a less intense form of development and to reinforce the garden character by having enough open space to allow the retention and planting of trees.

The Council supported the application considering that the design met the neighbourhood character imperatives and that it retained a reasonable level of amenity for adjoining residents.

In deciding in favour of the proposal, the Tribunal member made reference to a number of key principles which had arisen from a number of earlier VCAT decisions, which were summarised as follows (at Paragraph 15):

“Firstly, there are some key principles which have emerged from previous Tribunal decisions on point, which for our purposes can be summarised as follows:

Notably, the Tribunal quoted previous VCAT decisions in relation to each of these four points where previously supported.

  • the debate about “neighbourhood character” is about managing change as well as protecting to a reasonable level the valued features of any one neighbourhood;
  • the benchmark for whether or not proposed new buildings will be excessive is not “mere visibility” in itself;
  • showing respect for existing buildings/dwellings around the subject land does not mean the new development having to replicate or copy the existing building style/form; and
  • the mere fact that a proposal includes two storey built form does not in itself automatically constitute a fatal aspect a development proposal, even where most other dwellings in the local area are single storey”.


Relating to development in courts where there have been some variation in views from past decisions, and where many residents of courts see it as an environment that warrants special consideration for lower density or no development, the Tribunal member went on to conclude that development in a court warranted no special consideration, as follows (at Paragraph 16):

“Secondly, just because a proposed development site lies within a court (ie a dead-end street) rather than a through road does not make that site off-limits from this type of permit application.  Putting this another way, whilst it may be convenient for the relevant occupants to live in a court and whilst this may promote community spirit, the fact remains that courts as well as through roads are equally subject to the provisions of (in this case) the Manningham Planning Scheme.  The Scheme makes no distinction between courts compared to through roads, in terms of how this type of unit proposal must be assessed”.

Although the areas of private open space reduced marginally the requirements of the Residential 3 Zone, the areas were seen as adequate and of reasonable quality with good northern orientation and direct access from internal living areas.

The Tribunal approved the proposal with conditions that included some minor revisions to the plans.

The full decision (Thomas & Ors v Manningham CC [2011] VCAT 60) can be accessed through the following link http://www.austlii.edu.au/au/cases/vic/VCAT/2011/60.html