VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1226/2024
Permit Application no.YR-2024/83 	
CATCHWORDS	
Application under section 77 of the Planning and Environment Act 1987 (Vic); Review the refusal to grant a permit; Construction of a fence; Yarra Ranges Planning Scheme; Significant Landscape Overlay – Schedule 6; Landscape character.	

Applicant	Jade Mckenzie	

Responsible Authority	Yarra Ranges Shire Council	

SUBJECT LAND	4 Scenic Rise
KILSYTH VIC 3137	

HEARING TYPE	Hearing	

DATE OF HEARING	28 January 2025	

DATE OF ORDER	24 February 2025	

CITATION	Mckenzie v Yarra Ranges SC [2025] VCAT 170	
Order
No permit granted
1	In application P1226/2024 the decision of the responsible authority is affirmed.
2	In planning permit application YR-2024/83 no permit is granted.

Sarah McDonald
Member			

Appearances
For applicant	Jade McKenzie, in person.	
For responsible authority	Tracey Pascoe, team leader, planning, 
Yarra Ranges Shire Council.	

Information
Description of proposal	Construction of a fence.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 (Vic) – to review the refusal to grant a permit. 	
Planning scheme	Yarra Ranges Planning Scheme.	
Zone and overlays	Green Wedge A Zone; Significant Landscape Overlay – Schedule 6 (‘SLO6’).	
Permit requirements	Clause 42.03-2:  Construct a fence specified in the schedule to the Overlay, in the SLO6.	
Land description	The site is on the south-eastern corner of Scenic Rise and Liverpool Road.  
The site is rectangular with a frontage to Scenic Rise (to the north) of about 165 metres and to Liverpool Road (to the west) of about 123 metres.  The site is about 2 hectares in area.  The land slopes upwards to the east from the corner of Scenic Rise and Liverpool Road.  A large two-storey house is located approximately centrally on the eastern part of the site.  A large shed is located in the south-western corner of the site.
Scenic Rise is a court with six properties that adjoin it.  The other properties are a comparable size to the site.
The lower area of the Dandenong Ranges National Park is about 850 metres to the east of the end of Scenic Rise.  
Liverpool Road is a ‘collector road’ that extends between Mount Dandenong Road to the north and Mountain Highway to the south.  It has dense native vegetation in the wide road reserves along either side.	
Tribunal inspection	An inspection of the site and surrounding area was undertaken after the hearing.	

Reasons
What is this proceeding about?
1	Jade McKenzie (‘applicant’) is seeking a permit to construct a fence along the two street boundaries of her property at 6 Scenic Rise, Kilsyth (‘site’).
2	The proposed fence is to be constructed out of vertical blades that are 10 millimetres wide, 50 millimetres deep, and separated by 50 millimetre gaps.  The fence will be constructed in panels that step upwards following the slope of the land.  The height of the panels varies between about 1.3 metres and 1.75 metres.  The application plans include one pedestrian gate and two vehicle access gates along the Scenic Rise frontage to access a semi-circular driveway that is in front of the house.  The gates are set between limestone clad pillars that are up to 1.85 metres high.  Figure 1 shows a section of the proposed fence along Scenic Rise, including the pedestrian access gate and one vehicle access gate.

Figure 1:  Proposed fence section

3	A permit is required for the proposed fence only under the Significant Landscape Overlay – Schedule 6 (‘SLO6’) under clause 42.03 of the Yarra Ranges Planning Scheme (‘Scheme’).  The SLO6 schedule requires a permit to construct a fence except a fence that is both ‘a rural type - post and large space open weave wire fence’ and ‘less than 1.8 metres high’.  The proposed fence does not comply with either of these criteria and therefore is not exempt from the need for a permit.
4	The Yarra Ranges Shire Council (‘Council’) refused to grant a permit for the proposed fence.  Its grounds for refusing to grant a permit relate to, in summary, the proposed fence:
•	conflicting with planning policies relating to green wedges, landscapes, neighbourhood character, and design for rural areas;
•	conflicting with the SLO6 regarding landscape values, and the rural landscape character of the area; and
•	failing to comply with the decision guidelines at clause 65 of the Scheme.
5	The applicant has sought this review of the Council’s decision.
6	The applicant’s submissions explain their reasons for the height and design of the proposed fence.  These include needing to contain their pet dogs, with the dogs being able to jump up to 1.5 metres high, and their concerns for security, after having trespassers on their property at least three times.  The applicant argues that the majority of the proposed fence is 1.6 metres high.  They also argue that with the gaps between the fence blades it is easy to see through the fence, and their fence complements the style of their home.
7	The applicant has referred to other properties in the surrounding area that have fences that they say are similar to the proposed fence.  These include properties in Liverpool Road, Jeanette Maree Court, Glasgow Road, and Lobosco Court.
8	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be included on the permit.
9	The key issue to be decided is:
•	Does the proposed fence provide an acceptable response to the landscape character sought in the SLO6?
10	I have viewed the site and surrounding area, including properties on Liverpool Road, Jeanette Maree Court, Glasgow Road, and Lobosco Court, that the applicant refers to as having similar types of fences to the proposed fence.
11	Having considered the submissions, the relevant provisions and policies of the Scheme, and having viewed the site and surrounding area, I have decided to refuse to grant a permit for the proposal.  I find that the proposed fence does not provide an acceptable response to the landscape character sought in the SLO6.  My reasons follow.
Procedural issues and rulings
Amended plans of the proposed fence
12	As part of their submissions for the hearing, the applicant provided amended plans of the proposed fence.  These plans show an additional vehicle access gate towards the western end of the Scenic Rise frontage, to provide access to the large shed on the site.
13	As the applicant did not give notice of these plans in accordance with the VCAT Practice Note PNPE9 – Amendment of plans and applications I have not amended the permit application plans to substitute the amended plans for the permit application plans.
14	However, the Council confirmed that it considered the inclusion of the gate as minor in nature.  The Council also confirmed that, if I decided to grant a permit for the proposed fence, it did not object to a permit condition providing for the third set of gates being shown on amended plans to be submitted to the Council for approval.
15	I have had regard to these plans in this context.
What is the relevant planning Context?
The application is a class of VicSmart application
16	As I have mentioned, a permit is only required for the proposed fence under the SLO6.
17	An application to ‘Construct a fence’ is specified as a class of VicSmart application at clause 42.03-2 of the SLO provisions.
18	The Council did not assess the application as a VicSmart application.  Indeed, it required notice of the application to be given, even though the provisions for the ‘Operation of VicSmart applications and process’ at clause 71.06-2 exempt VicSmart applications from the notice requirements under the Planning and Environment Act 1987 (Vic).
19	The Council submits that ‘the application was not processed as a VicSmart application as it was not applied for’.  The Council relies on the VCAT decision in Wittenbach v Cardinia SC (‘Wittenbach’) in support of its position.
20	I am not persuaded by the Council’s submissions in this regard.  The decision in Wittenbach was made in 2017.  The provisions of the Scheme relating to VicSmart applications have changed since then.
21	The permit requirements at clause 42.03-2 of the SLO provisions in the current Scheme state that:
Subject to Clause 71.06, an application under this clause for a development specified in Column 1 is a class of VicSmart application and must be assessed against the provision specified in Column 2.
[Tribunal’s emphasis]
22	The provision specified in column 2 for the class of application to ‘construct a fence’ is clause 59.05.  This clause applies to ‘buildings and works in an overlay’.
23	The provisions for VicSmart applications and process at clause 71.06-2 include that:
•	The responsible authority must assess a VicSmart application in accordance with the requirements of this clause.
[Tribunal’s emphasis]
24	Among other things, in deciding a VicSmart application the matters to be considered by a responsible authority include:
•	Must only consider the decision guidelines specified for the relevant class of application.
25	The ‘VicSmart Planner and Practitioner Guide’ supports my interpretation of this application being a VicSmart application.  It states:
If a proposal meets the criteria to be a VicSmart application, it must be assessed using the VicSmart process.
A council cannot choose to assess a VicSmart application using the regular permit process.
26	At the hearing, the Council conceded that the application should have been assessed as a VicSmart application.
27	The implications of the Council not assessing the application as a VicSmart application is of little consequence for this proceeding.  This is because:
•	even though notice of the application given, it did not receive any objections and there are no respondent parties in this case; and
•	other than the Council’s grounds for refusal relating to the decision guidelines at clause 65, the parties do not rely on any policies or provisions of the Scheme that are not within the scope of the provisions at clause 59.05.
28	However, it is a timely reminder for the Council that the VicSmart permit process provides a more efficient permit process, both for the Council as the responsible authority and a permit applicant, and ensures the level of assessment is proportional to the nature of the proposal.
29	My findings are based on this application being a VicSmart application and having regard to only the relevant provisions for VicSmart applications.
Relevant VicSmart & SLO6 provisions
30	The decision guidelines for buildings and works in an overlay at clause 59.05-2 require me to consider, as relevant:
•	The statement of significance and the objectives contained in the schedule to the overlay and whether the buildings and works will adversely affect that significance or the objectives.
•	Whether the proposal meets any requirements specified in the overlay or the schedule to the overlay. 
…
•	Any relevant decision guideline specified in the overlay and the schedule to the overlay.
31	The decision guidelines of SLO6 provisions at clause 42.03-5 include, as relevant:
•	The Municipal Planning Strategy and the Planning Policy Framework.
•	The statement of the nature and key elements of the landscape and the landscape character objective contained in a schedule to this overlay.
•	The conservation and enhancement of the landscape values of the area. 
…
•	The impact of the proposed buildings and works on the landscape due to height, bulk, colour, general appearance or the need to remove vegetation.
•	The extent to which the buildings and works are designed to enhance or promote the landscape character objectives of the area.
•	The impact of buildings and works on significant views.
•	Any other matters specified in a schedule to this overlay.
32	The SLO6 schedule applies to ‘Rolling hills and bushy agriculture landscape’.  The ‘Statement of nature and key elements of landscape’ at clause 1.0 of the SLO6 schedule is, as relevant:
The Rolling Hills and Bushy Agricultural Landscape covers broad areas of pleasantly undulating land with a mountain backdrop. …
This landscape comprises mostly farmland although it includes many patches of remnant vegetation.  It generally has a coarse grain of subdivision with lot sizes mostly between 10 and 20 hectares.  Lots are divided into an irregular grid network with lot boundaries often being based on natural features.  Properties are generally clearly defined by rural post and wire fencing or windrows.  The road pattern is irregular.
…
Most houses are well set back from major roads.  Building architecture within this landscape is from a range of styles and eras.  Farm houses are often large sprawling structures with rural design elements such as verandahs.  Houses are often clustered with farm sheds and partly screened by trees.  Winery complexes, often adopting contemporary design styles are a feature of the winegrowing areas.
Views are commonly to a mid range of rolling hills with the Great Dividing Range frequently silhouetted across the horizon as a backdrop to longer distance views.
33	The ‘Landscape character objectives to be achieved’ at clause 2.0 of the SLO6 schedule include, as relevant:
•	To maintain a comparatively open rural landscape of farmland and bushland patches in which houses, farm buildings and tourist facilities are generally inconspicuous.
•	To ensure that the siting and design of new buildings complements their setting and reinforces the rural landscape character of the area. 
…
•	To allow middle and long distance views from the valley to the surrounding ranges.
•	To maintain the appearance of an uninterrupted forested backdrop to views.
34	The decision guidelines at clause 5.0 include, among other things and as relevant:
Building siting
•	The visual impact on views from adjoining roads and other publicly accessible viewing points.
•	Whether buildings and associated works are sited to avoid visually prominent sites such as exposed hilltops or ridgelines.
…
Building appearance
…
•	How the height of buildings relates to the heights of any surrounding tree canopy and nearby development. 
•	Whether external finishes of buildings use muted tones and non-reflective surfaces and incorporate natural elements such as timber and stone. …
Fence and boundary treatments
•	Whether the front fence and boundary treatments avoid formal landscape design (such as geometrically aligned/spaced tree avenues or garden beds) and hard surfaces and hard edges in landscaping.
•	The appearance of entrance gates and adjacent walls or fences and how they relate to the character of the remainder of the property boundary fence and the landscape.
Relevant planning policies
35	The SLO6 decision guidelines at clause 42.03-4 require consideration be given to the Municipal Planning Strategy and Planning Policy Framework.
36	The Council’s submission refers to various clauses of the Municipal Planning Strategy and Planning Policy Framework.  These include:
i	Clauses 02.03-1 ‘Settlement’ and clause 02.03-5 ‘Built Environment and Heritage’ of the Municipal Planning Strategy.  The Council says that the site’s location is considered to be a ‘Rural Residential Area’ under clause 02.03-1.
The strategic directions for Green Wedge Areas at clause 02.03-1 include:
Protect the Green Wedge by ensuring use and development complements or enhances the primary values and characteristics of the Green Wedge.
ii	The regional policy and associated strategies for ‘Green Wedges Metropolitan Melbourne’ at clause 11.01-1R, which has the objective ‘To protect the green wedges of Metropolitan Melbourne from inappropriate development’.
iii	The polices and associated strategies for ‘Significant Environments and Landscapes’ at clause 12.05.  The relevant strategy of the local ‘Rural Landscapes’ policy at clause 12.05-2L is:
Design and site development sensitively having regard to the natural physical features of the land including slope, existing vegetation and view lines.  
iv	The policies and associated strategies for ‘Built Environment’ at clause 15.01.  The objective of the state neighbourhood character policy at clause 15.01-5S is:
To recognise, support and protect neighbourhood character, cultural identity, and sense of place.
The objective of the state ‘Design for rural areas’ policy at clause 15.01-6S is:
To ensure development respects valued areas of rural character.
37	I have had regard to the strategies and policies in reaching my findings.
What are the Tribunal’s findings?
38	Despite the landscape character objectives of the SLO6, Scenic Rise is not entirely consistent with the ‘comparatively open rural landscape of farmland and bushland patches in which houses, farm buildings and tourist facilities are generally inconspicuous’.  While the Dandenong Ranges provide a distinctive backdrop when looking east along Scenic Rise, and there is dense native vegetation along both sides of Liverpool Road, Scenic Rise otherwise has the character of an open ‘rural residential’ area.  This is consistent with the Council’s submission that this area is a ‘rural residential area’ under clause 02.03-1.  Indeed, Scenic Rise is a bitumen road with concrete kerbing, and a concrete footpath along one side.
39	Despite this, Scenic Rise maintains a distinctive and consistent open rural residential character created by the dwellings, the nature of the landscaping, and the style of boundary fences.  The dwellings and large sheds are clearly evident from the street.  The landscaping around the dwellings is mostly lawns, with very little vegetation.  Where there are trees and shrubs, these are typically planted along property boundaries and the sides of driveways.  Much of the landscaping is not mature.  The existing fences along the street are either post and rail or post and wire fences with masonry or stone feature walls at the vehicle entry points.  Fences between properties is typically post and wire.
40	The proposed fence has a distinctive urban style and appearance.  While the proposed fence may be consistent with the very contemporary style of the dwelling on the site, it is completely inconsistent with the prevailing character of Scenic Rise generally as well as the fences in Scenic Rise.
41	It is not the height of the proposed fence that is the issue.  Other than the pillars at the entry points and a couple of points along the fence line where the land levels change, most of the fence is below the 1.8 metre height which is one of the two criteria for the exemption from the need for a permit.  Rather, it is the densely spaced metal blades that extend across the full width of the boundary to Scenic Rise that is completely inconsistent with the prevailing character of this street.
42	The fence will be an obvious and jarring urban style element within what is an otherwise open rural residential landscape.  The substantial length of the site’s Scenic Rise boundary will accentuate the visual impact of the proposed fence within the street.
43	The distinctive urban style of the proposed fence will create the sense of a formal landscape design that is inconsistent with the rural residential character of Scenic Rise.
44	The proposed fence will not maintain the comparatively open landscape of Scenic Rise or reinforce the landscape character of the area as sought by the landscape character objective of the SLO6.  
45	The detailed design of the fence has not been designed sensitively to complement or enhance the primary values and characteristics of Scenic Rise of the broader SLO6 area, or protect or respect the character of this area.
46	While the section of fence along Liverpool Road will not be evident due to the dense vegetation within the road reserve, the section of fence along Scenic Rise will be visually prominent as one enters and exits the street.  
47	I am not persuaded by the applicant’s suggestion of planting hedges on the inside of the proposed fence as a way to off-set its visual impact.  The application does not include details of any proposed landscaping.  As such, I do not know whether any landscaping will form a dense hedge grown through and concealing the fence, or if it will simply be shrubs providing a backdrop to the fence.  If the intention is for the hedge to grow through and conceal the fence, the proposed metal blade design of the fence seems unnecessary and excessive and will have an unacceptable visual impact unless and until the hedge is established.  A hedged outcome could be achieved with a simple post and wire or mesh fence pending the hedge becoming established.  If the intention is for landscaping such as shrubs as a hedged backdrop to the fence, I have no information to support a finding that this will be sufficient and acceptable to off-set the visual impact of the proposed fence on the landscape character.
48	I acknowledge that there are other properties in the surrounding SLO6 area that have fences that are not post and rail or post and wire fences.  However, I am not persuaded that these support a permit being granted for the proposed fence.  Those other properties are not within Scenic Rise, and the proposed fence will not be viewed within the context of those fences.  Those properties are in other courts or roads that have their own distinctive circumstances and characters.  The one property referred to on Liverpool Road, is about 400 metres to the north, on the opposite side of the road, and within in a different municipality and with different planning scheme controls.  That property is not affected by the SLO6.
49	I also acknowledge the applicant’s reasons for wanting the fence as proposed.  However, I am not satisfied those reasons support me finding that a permit should be granted for the proposed fence.  Given the SLO6 that applies to the site, a fence design that is more responsive to the SLO6 provisions and the landscape character of Scenic Rise is required in this location.  In this regard I note the fences along the frontages of the properties at 25 and 35 Scenic Rise.  These are post and rail fences backed with either wire mesh or a metal grill that may be suitable for containing dogs and providing some security from potential trespassers.
50	For these reasons I find that the proposed fence does not provide an acceptable response to the landscape character sought in the SLO6.
Conclusion
51	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Sarah McDonald
Member