1. The Responsible Authority received two objections to the application, one from a benefiting owner and the other from a neighbour who is not a beneficiary of the covenant.
2. Mr and Mrs Mascioli, who are owners of benefitting land at 4 Park Avenue Preston, submit that they will suffer detriment if the covenant is varied or removed. They purchased their property in the expectation that the neighbourhood would be comprised of single dwelling allotments.[3] They are so concerned about the prospect of higher density development on the subject land, that they have placed their own plans to build their "dream house" on hold. They expressed concern about the ensuing traffic and parking impacts of a multi-dwelling development and submitted that the area is already suffering from traffic congestion generated by the neighbouring school and mosque. They were also uneasy about the number of dwellings and form of development that the Applicant is intending to construct on the subject land. They submitted that if a variation was granted, it may stand as a precedent for surrounding land owners to seek removal or variation of the single dwelling covenants burdening their allotments.
3. I note that there was no suggestion made by any of the parties that the Masciolis' objection was vexatious or not made in good faith.
4. The Responsible Authority also received an objection from Mr and Mrs Pulice of 10 Park Avenue, Preston, who are are not beneficiaries of the covenant and did not seek to participate in this proceeding. I note that I am required to give consideration to the objections of non-beneficiaries.[4] Mr and Mrs Pulice were concerned that there was uncertainty with the number of dwellings that were intended be developed on the subject land and the potential traffic impacts for Park Avenue.

1. The test in section 60(5) of the Act is extremely stringent and imposes a very heavy burden on an Applicant to affirmatively demonstrate that any detriment of any kind is unlikely to follow from the removal or variation of a restrictive covenant, including perceived detriment. The Tribunal has regularly described this provision as setting an "extraordinarily high" bar.[5]
2. The onus is not on a beneficiary to the covenant to prove the existence of detriment, but on the Applicant for removal or variation to positively satisfy the Responsible Authority that any detriment of any kind is unlikely.[6]
3. The Applicant sought to justify its variation request in terms of the planning merits of medium density development on the subject land. Mr Mancuso submitted that enabling the construction of more then one dwelling on the subject land has strong strategic support in terms of urban consolidation and the location of the site in close proximity to public transport, shopping and recreational facilities and schools. He also submitted that the site is large enough to accommodate a multi-dwelling development.
4. The Act does not allow me to consider whether the site can support a multi-dwelling development, or whether medium density development has strategic support in the Planning Scheme. These matters are not relevant to the assessment of detriment to beneficiaries in section 60(5) of the Act.
5. In view of this, I do not consider that the Applicant has satisfied me that any detriment of any kind is unlikely to follow from the variation of the restrictive covenant. In fact I note that in the course of submissions Mr Mancuso conceded that he was unable to prove that detriment would not result following from the variation of the covenant.
6. Whilst it is not necessary for detriment to be demonstrated, I am in this instance persuaded that it is likely that the owners of land benefited by the restrictive covenant, including the Masciolis, would suffer detriment as a result of the variation. The Tribunal has long held that perceived detriment includes loss of amenity.[7] I consider that the Masciolis reasonably perceive that they will suffer detriment as a result of increased vehicular traffic and the loss of the single dwelling character of their neighbourhood. In this respect, I note that the area surrounding the subject land has remained quite intact, with only one multi-dwelling development at 63 Jessie Street, which the Responsible Authority submits was approved under an earlier statutory scheme.
7. The concept of "any detriment" requires me to consider every possible detriment of every possible development that could be enabled by the variation.[8] The absence of a concurrent development application makes it is especially difficult for me to be satisfied that every possible form of development would be unlikely to cause detriment of any kind to a benefiting owner. This is the case even if the restriction was varied to five double storey dwellings, as proposed by Mr Mancuso. Senior Member Wright QC addressed a similar issue in Giosis v Darebin CC[9] where he observed that:

... the absence of a firm development proposal means that there are an infinite number of three unit or three dwelling developments that could take place in consequence of the variation of the covenant. In my view it is simply not possible to say that none of those developments would be likely to have a detrimental impact of some kind on the benefitting properties, particularly the adjoining units ...[10]

1. I am not satisfied that the variation of the restrictive covenant contained in Instrument of Transfer 812277 is unlikely to cause any detriment of any kind, including perceived detriment. Accordingly, I am required by section 60(5) of the Act to refuse the application. The decision of the Responsible Authority is affirmed and no permit is granted.

[1] The Applicant did not apply to formally amend the permit application. In any case, the Responsible Authority and Mrs Mascioli were still opposed to the variation, even with a restriction on the number of dwellings.

[2] The Responsible Authority, which had also refused the application on the ground that the Applicant had not provided confirmation that it had given notice of the application, acknowledged in the course its submission that the Applicant had given the notice under section 52 of the Planning and Environment Act 1987.

[3] It was submitted that the majority of allotments in the block are burdened by a single dwelling covenant.

[4] Section 57(1) of the Planning and Environment Act 1987 states that any person who "may be affected" by the grant of a permit may object. In addition the decision guidelines in Clause 52.02 Easements, Restrictions and Reserves in the Planning Scheme require consideration to be given to the interests of affected people. This was also the finding of Deputy President Gibson in Hill v Campaspe SC (Red Dot) 2011 VCAT 949.

[5] McFarlane v City of Greater Dandenong [2002] VCAT 696, [21]; Giosis v Darebin CC (Red Dot) [2013] VCAT 825, [12].

[6] McFarlane v City of Greater Dandenong [2002] VCAT 696, [15] at sub-paragraphs 1 and 5, and [27]; Giosis v Darebin CC (Red Dot) [2013] VCAT 825, [21].

[7] Carabott v Hume CC (1998) 22 AATR 261, 279.

[8] Slaveski v Darebin CC [2006] VCAT 593, [32].

[9] (Red Dot) [2013] VCAT 825.