Council refusal set aside and permit granted for 15 three-storey dwellings on a sloping Doncaster site (VCAT, 2026)

What happened

The site is a large corner block at the junction of Reisling Street and Rathmullen Quadrant in Doncaster. It held a double-storey brick house with a tennis court, had mature trees along each frontage, and sloped significantly. The land sits in the General Residential Zone (Schedule 2) and is covered by Schedule 8 to the Design and Development Overlay, known as DDO8, which applies to residential areas around activity centres and along main roads. The site is in sub-precinct 2 of that overlay.

The developer applied for a permit to build 15 three-storey attached dwellings arranged in five separate building modules: 14 with three bedrooms plus a study, and one two-bedroom dwelling. Cars would enter from Reisling Street into garages with internal access to each dwelling, all doubles except one single. Because of the slope, most dwellings would sit above ground level, up to 1.7 metres above the immediate natural ground level. All existing trees on the land would be removed. The proposed maximum building height of 11 metres met the overlay's maximum.

The council refused the permit and the developer applied to the Tribunal for review. Before the hearing the developer circulated amended plans, which changed the car parking layout, added some ground-level bedrooms, altered access grades and lowered part of the built form. Nobody objected, so the Tribunal substituted those plans and decided the case on them. On the amended plans the council's remaining objections were that the design did not respond to the slope and was excessive in scale, and that it presented excessive visual bulk with inadequate side and rear setbacks and poor articulation.

Shortly before the hearing the council raised a further concern about sunlight reaching the private open space of two of the new dwellings. The Tribunal made interim orders so both sides could put fuller submissions on that point. Several nearby residents filed statements of grounds, raising car parking and traffic, neighbourhood character, bulk, privacy, and noise and construction impacts, but chose not to become parties. The Tribunal took those statements into account. It was not in dispute that the site could hold multiple dwellings, that the proposal met the required number of on-site car parking spaces, or that the council's traffic engineers had no concerns.

What each side wanted

The developer asked the Tribunal to set aside the refusal and grant a permit, arguing that the built form was an acceptable response for an area the planning scheme marks for substantial change, that the small shortfalls in side setbacks were at interfaces that were not sensitive, and that the overlay's limit on the size of upper levels should be treated as a guide rather than a hard rule. The council asked the Tribunal to uphold the refusal, saying the upper levels were imposing and sheer, that the setbacks of three of the dwellings fell short of the standard and would harm the amenity of neighbours, and that two of the new dwellings' balconies would be unreasonably overshadowed. The residents who filed statements of grounds opposed the scale, traffic, privacy and character effects of the development.

What the tribunal decided

The Tribunal substituted the amended plans for the permit application plans under clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic): the architectural drawings numbered TPA01 to TPA23 dated 10 July 2026, and the landscape plan dated 8 July 2026.

In proceeding P206/2026 the decision of the responsible authority was set aside. A permit was granted and directed to be issued for the land, in accordance with the endorsed plans and the conditions set out in Appendix A to the decision. The permit allows construction of two or more dwellings on a lot under clause 32.08-7, and construction of a building or works under clause 43.02-2.

The conditions include the change the developer itself offered: the first floor southern parapet of Unit 15 is to be reduced by 500mm. Other conditions require screening to the west-facing living room window of Dwelling 8, obscured garage windows, a minimum headroom clearance of 2.5 metres between the driveway and the underside of the balconies on Dwellings 1 to 4 without raising overall height, deletion of the Juliet balconies or making them accessible, screen planting capable of reaching three metres along the northern boundary, a tree protection specification and plan, a waste management plan, stormwater and on-site detention requirements, and no connection to a reticulated gas service. The permit expires if the development does not start within three years or is not completed within five years of the date of the permit.

Why the tribunal decided it that way

The application was a review under section 77 of the Planning and Environment Act 1987 (Vic) of a refusal to grant a permit. Because this was a planning review rather than a money claim, the Tribunal's task was to decide whether a permit should be granted and, if so, on what conditions.

On setbacks, the Tribunal explained that where a clause 55 standard is not met, the relevant objective and decision guidelines must be considered instead. The objective of the side and rear setbacks provision, clause 55.02-3, is that the height and setback of a building from a boundary should respond to the existing or preferred neighbourhood character and limit the impact on the amenity of existing dwellings. One dwelling fell short of the standard on the western boundary by up to 780mm, and two others fell short on the northern boundary by between 114mm and 656mm. The Tribunal found the western interface was not a sensitive one, being a narrow side service yard with no habitable room windows, and that the building there was set back more than five metres from the shared boundary and more than six metres from the street, leaving room for landscaping to soften the form. On the northern boundary the neighbouring house has a raised deck about two metres above ground level that sits at or above the fence line and already looks over the site, so the effect of a wall closer to the boundary was mitigated, and the facing wall of that house is largely without windows. The Tribunal noted that visibility alone is not the test of whether a proposal is acceptable, and that local policy for this precinct promotes substantial change.

On the overlay, the Tribunal accepted that DDO8 requires a separate, qualitative judgement that stands apart from clause 55. It worked through the schedule's aspirations and was satisfied on site coverage under 60 per cent, visual interest through articulation and materials, no walls on boundaries, setbacks that allow screen planting, modules stepping with the slope, no unreasonable overlooking, a single crossover to each street, seven canopy trees in the front setback and gaps between modules for planting. The schedule also asks that the upper level of a three-storey building not exceed 75 per cent of the levels below unless there is sufficient architectural interest to reduce visual bulk and avoid continuous sheer walls. Following an earlier Tribunal decision in a case concerning the same council, the Tribunal treated that figure as a guide and then judged the overall impression of bulk, finding the top floors sufficiently articulated through modest recession, balcony treatments and material choice, and consistent with newer development nearby.

On sunlight, both sides agreed the balconies of two dwellings did not meet standard B3-6 in clause 55.03-6, which requires private open space to the south of a wall to have a width greater than 0.9 times the relative building height plus two metres. The shadow came from the southern face of Unit 15. The developer accepted that the 800mm first floor parapet, which houses a box gutter, only needs to be 300mm, so it could come down by 500mm, cutting the shortfalls to 220mm and 450mm. A further 160mm shortfall from the second floor wall could not be fixed without lowering a ceiling, which the Tribunal did not think necessary: only part of the width of each balcony fell short, the balconies are more than 14 square metres and exceed the minimum areas in the scheme, and one of the two dwellings also has a second balcony. On that basis solar access to the new dwellings' private open space was acceptable.

What this means if you are in a similar position

If you are in a similar position, this decision shows how a tribunal handles a council refusal built on small numerical shortfalls. The standards in clause 55 and the figures in a design and development overlay are not treated as pass or fail lines in themselves. Where a standard is missed, the decision maker turns to the objective behind it and to the decision guidelines, and asks what the shortfall actually does to the neighbours and the streetscape. Shortfalls of a few hundred millimetres at an interface with a service yard, a blank wall or an already elevated deck were found to cause no unreasonable impact, while the same numbers at a bedroom window or a ground-level yard could read very differently.

It also shows the weight given to what the planning scheme says the area is meant to become. The local policy and the overlay for this precinct supported substantial change and three-storey development on a site of that size, so the fact that the buildings would be plainly visible from the street and from neighbouring yards did not by itself make them unacceptable. Practical offers mattered too: the developer's own concession to cut a parapet by 500mm became a permit condition and removed most of the sunlight problem, and amended plans circulated before the hearing were accepted without objection and replaced the plans the council had refused.

In this kind of dispute, most people start by putting their concerns or their request to the council in writing, setting out the site, the proposal and the specific provisions in issue, and only then lodge an application with the tribunal if the matter is not resolved.

How to apply: our step-by-step guide to a VCAT application. More decisions: VCAT cases and other civil disputes.

Source: LWGW Rathmullen Pty Ltd v Manningham CC [2026] VCAT 840 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.