Overlooking objection ends after amended plans met the standard; permit sent back to council (VCAT, 2026)

What happened

Hobsons Bay City Council issued a Notice of Decision to Grant a Planning Permit on 22 May 2026 for the development of land at 50 Seves Street, Altona, for two dwellings. A Notice of Decision to Grant a Permit is the step a council takes when it intends to approve a planning permit but objectors have a period to seek review. Two residents of the same street applied to VCAT for review of that decision under section 82 of the Planning and Environment Act 1987. They asked the Tribunal to refuse the permit, on the basis that the proposed dwellings would give views over their open space and into their home.

The matter was first set down for a compulsory conference on 8 September 2026 and a hearing on 4 December 2026. Before that, at a practice day hearing on 21 August 2026, the Tribunal made an order under clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 substituting new plans for the permit application: architectural plans Rev TP04 and a landscape plan dated 23 June 2026, both provided to the Tribunal on 5 August 2026.

Because of the objecting neighbours' personal circumstances, the compulsory conference could not go ahead and no compulsory conference was held. Instead, following correspondence from the permit applicant, the matter was referred to a further practice day hearing on 1 October 2026 to give directions about how the proceeding would run and to consider whether the application should be sent back to the council for reconsideration. The objecting neighbours appeared in person, the council was represented by a town planner, and the permit applicant was represented by a lawyer.

The land sits in a residential area and is in the General Residential Zone, Schedule 4. The Tribunal recorded that no party disputed that the neighbours had been entitled to lodge the review when they did, and no party took issue with the grounds they had raised. What had changed, the Tribunal said, was the assessment regime that applied to the proposal, because the plans had been amended.

What each side wanted

The objecting neighbours asked the Tribunal to refuse a permit for the two dwellings, arguing the development would allow views into their secluded private open space and their dwelling. At the practice day hearing the council and the permit applicant both submitted that, on the amended plans, the proposal complied with the overlooking standard in the planning scheme, and the permit applicant's correspondence had raised whether the application should instead be remitted, that is, sent back to the council, for reconsideration.

What the tribunal decided

The Tribunal set aside the council's decision of 22 May 2026 to issue the Notice of Decision to Grant Planning Permit PA250425, and remitted that decision for re-consideration by Hobsons Bay City Council in accordance with the provisions of the Hobsons Bay Planning Scheme that apply to the land, along with any other necessary considerations. The order was made under section 51(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998.

The hearing listed for 4 December 2026 was vacated and the Tribunal recorded that no attendance was required. No money was ordered to be paid by anyone. The Tribunal stated that, as a consequence of the order, the proceeding was at an end.

Why the tribunal decided it that way

The Tribunal reviewed the plans as amended by its order of 21 August 2026 against clause 55 of the planning scheme, the set of residential design standards known as ResCode. It found the proposal met the standards in clauses 55.02, 55.04-1, 55.04-2, 55.04-3, 55.04-4 and 55.05-2.

The neighbours' particular concern was clause 55.04-4, the overlooking clause, and Standard B4-4 within it. That standard requires habitable room windows, balconies, terraces, decks and patios to be located and designed to avoid direct views into the secluded private open space of an existing dwelling within nine metres, measured at ground level, with views measured within a 45 degree angle from the window or balcony edge and from a height of 1.7 metres above floor level. Where there is a direct view into an existing habitable room window within nine metres, the standard is met by one of a list of measures: a 1.5 metre offset between window edges, sill heights of at least 1.7 metres, fixed obscure glazing below 1.7 metres, permanently fixed external screens to 1.7 metres that are no more than 25 per cent transparent, or fixed elements such as ledges or fins that prevent the view. The clause 55 header provision says that if a development meets a standard, the matching objective is treated as met and the responsible authority does not have to consider the decision guidelines. The Tribunal agreed with the council and the permit applicant that, on the amended plans, Standard B4-4 was met, and said that in finding the standard met it had to accept that the objective of clause 55.04-4 was also met. It recorded that it understood the neighbours' concerns about overlooking.

That finding mattered because of clause 32.08-13 of the General Residential Zone. Under that clause, an application for two or more dwellings on a lot of three storeys or less, excluding a basement, is exempt from the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(1) of the Planning and Environment Act if all the applicable standards under clauses 55.02, 55.04-1, 55.04-2, 55.04-3, 55.04-4 and 55.05-2 are met. In other words, once the amended plans met those standards, the scheme removed the notice, decision and review rights of third parties such as neighbours for the permissions now needed.

The Tribunal concluded that keeping the review in the Tribunal, even with amended grounds, would mean hearing from third parties in circumstances where the scheme had removed those rights, which would be at odds with the intention behind the exemption in clause 32.08-13. It held that although the neighbours had standing to lodge the review, the application should not stay in the Tribunal, and that the preferable course was to set the council's decision aside and remit it so the council could assess the permit application against the substituted plans and the current scheme provisions.

What this means if you are in a similar position

If you are in a similar position, objecting to a development next door or down the street, this decision shows how closely planning outcomes can turn on whether a design meets a written standard rather than on how a neighbour feels about the result. Victoria's General Residential Zone contains an exemption: for two or more dwellings of three storeys or less, if the applicable ResCode standards are met, the scheme itself takes away the notice, decision and review rights that would otherwise let neighbours object and seek review. The Tribunal applied that exemption even though the review had been lodged properly at the time.

It also shows that plans can change during a proceeding. Here the plans were substituted by Tribunal order partway through, and the amended design satisfied the overlooking standard in clause 55.04-4, including measures such as offsets, raised sill heights, obscure glazing or fixed screens. Once a standard is met, the decision maker is not required to weigh the decision guidelines that sit under it, so arguments about the general amenity effect have less room to run.

In this kind of dispute, most people start in writing with the council rather than at the tribunal: a clear written objection or request that sets out the specific scheme provisions and the measurements they are concerned about, kept on the file, before any application for review is considered.

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

Source: Grace v Hobsons Bay CC [2026] VCAT 851 (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.