Planning Tidbits

Little bits that can make a big difference to your town planning outcomes


We understand that, by the time you are reading this tidbit, that Giselle Grynbaum would have already left the BDAV. Our small team at Clause 1 would like to say a heartfelt farewell to Giselle. Giselle has represented the BDAV with the utmost integrity and professionalism in all of her dealings with Clause 1, since we were first introduced more than 11 years ago. We sincerely hope whatever endeavours come next are enriching and thank you sincerely for all your support and hard work.


The matter of 631 Plenty Road Preston Pty Ltd v Darebin CC [2018] VCAT 1849 was concerned largely with the interpretation of Standard D24 of Clause 58.07 of Planning Schemes. That clause contains objectives to ensure apartments provide functional internal areas. The Standard of that clause includes minimum internal dimensions for bedrooms and living rooms. Living room standards are:

– Studio and 1-bedroom dwellings: minimum width 3.3 metres, minimum area 10 sqm;
– 2 or more bedroom dwelling: minimum width 3.6 metres, minimum area 12 sqm.

The Standard also states:

Living areas (excluding dining and kitchen areas) should meet the minimum internal room dimensions specified in table D8.

In this Tribunal case, the proposal provided living areas within a larger open plan room, also containing kitchen and dining areas, as is commonly designed in modern housing proposals. The Tribunal found that Standard D24 should be interpreted as requiring a living area envelope to be identified within the broader open plan room. A number of particular questions were raised in the case about the application of the standard whereby the Tribunal found:

– Space needed for cupboards to open or other uses of the kitchen could not be included in ‘living area’;
– The minimum width of the living area is the smaller of the two dimensions of that area. For example, where a living area is a rectangular shape of 3.3 x 3 metres, the 3 metres dimension will be taken as the width (irrespective of the way in which the living area is oriented within the open plan area).

In this case, the applicant had shown the dimensions and area of the ‘living area’ within each apartment. Many of them did not meet the minimum dimensions of the standard.

However, because each living area was located within a broader open plan living/dining/kitchen layout, the Tribunal found that there was sufficient alternative space to meet the internal amenity requirements of future residents. That is, although the proposal did not meet the standard, it was considered to have met the objective of that clause.

These tidbits are part of the regular contribution made by Clause:1 Planning to Intersect. For more information visit www.clause1.com.au


In Makhmalbaf v Monash CC [2018] VCAT 1641 the Tribunal considered a proposal for two dwellings on one lot. The Monash Planning Scheme designated the site within the boundaries of the
Glen Waverley Activity Centre, whereas the zone and local planning policies sought to treat the site in the same manner as other residential neighbourhoods, far removed from an activity centre. There were three preferred character statements applying to the site, all seeking to achieve very different character outcomes: one being part of current planning policy, one part of the Monash Housing Strategy and one part of a Planning Scheme Amendment before the Minister for a decision.

In this case the Tribunal found that:

– Greatest weight should be placed on the character statement from the Monash Housing Strategy;

– The preferred character statement from the Monash Housing Strategy was the only one to recognise the position of the review site and surrounding neighbourhood within the boundaries of the highest order activity centre in the municipality;

– The identification of a preferred character statement for residential neighbourhoods inside an activity centre, as provided in the Monash Housing Strategy, is a more specific and relevant guidance for the review site, as opposed to character statements for much broader areas, that comprise up to half of the residential areas in a municipality;

– The preferred character statement from the Monash Housing Strategy was the only one consistent with the most recent planning policy (which takes into account some of the more recent policy changes at a State and regional level);

– The balance of policy at both a State, regional and local level supports the establishment of medium and higher density housing at that location within a higher order activity centre;

– The Monash Housing Strategy 2014 is a Council-adopted strategy, and is a reference document to the Monash Planning Scheme; it represents the most recent strategic intent to be implemented in the Monash Planning Scheme;

– The other two character statements provided generalised preferred character statements that applied to all residential land within the municipality. The Tribunal found these did not make sense and nor did they assist in decision making in activity centre locations.

In a situation like this, it is no wonder that permit applicants can be confused about Council’s strategic intent and preferred neighbourhood character for any designated area.

To contact Clause:1 Planning, go to www.clause1.com.auorphone (03) 93709599