1. The proposed development would detrimentally affect the quality of residential amenity provided in the area;

2. It would change the character of the area as a residential area;

3. It would create a precedent and lead to further applications of a similar nature which in turn would lead to a further deterioration of the character and amenity of the area;

4. Loss of the quality and character of the neighbourhood;

The application was forwarded to the Council's delegate pursuant to section 188 of the Act. The report of the delegate (Exhibit "H") is dated 24 June 1998 and states as follows:

"Given that an objection has been received from the owner of a property benefiting from the covenant, and council has no evidence before it to suggest that the objections received are vexatious or not made in good faith, council is unable to reach the conclusion that the granting of the permit is unlikely to result in detriment of any kind to such properties.

That the application be refused on the following grounds:

The proposal does not satisfy the tests established by Section 60 (5) of the Planning and Environment Act 1987".

APPLICATION OF SECTION 60 (5)

This appeal was argued on the basis of the correctness or otherwise of the Responsible Authority's view that it was prevented, in the circumstances, from issuing a permit by the operation of s. 60 (5).

The application for a permit to remove the covenant is brought pursuant to clause 7-1.5 of the State Section of the Boroondara Planning Scheme. The statutory authority to provide in a planning scheme for the granting of such a permit is to be found in s. 23 (1) of the Subdivision Act 1988 and s. 6A of the Planning and Environment Act 1987.

Those sections were inserted by the Subdivision (Miscellaneous Amendments) Act 1991 in order to provide, amongst other things, a cheaper procedure for the removal of restrictive covenants than an application to the Supreme Court pursuant to s. 84 of the Property Law 1958 or a planning scheme amendment. When the Bill from which that Act arose was introduced into the Legislative Assembly, the provisions allowing for the removal of covenants by the issue of a permit were, as the debates show, a matter of great controversy. The Bill was extensively debated and an important amendment, introduced by the opposition parties, now appears as s. 60 (2) of the Planning and Environment Act 1987. The purpose of this subsection was to limit the circumstances in which a permit could be granted to remove a covenant. In suggesting the amendment, the Member for Balwyn, Mr Clark said (Hansard: p. 2995 Legislative Assembly):

"...what the coalition is saying is that the Bill should be amended so that no permit can allow the abolition of covenants or other restrictions unless the responsible authority is satisfied that there will be no loss of any sort in any material respect to a person who derives a benefit from the covenant or unless a person who derives a benefit from the covenant consents to the removal of that covenant.

This will allow a more simple mechanism for the removal of outdated and superfluous covenants; that is, covenants that are dead letters. On the other hand, if a covenant has any real and enduring benefit it cannot be removed without the consent of the persons who would be harmed by that removal."

In moving the amendment, the Shadow Minister for Planning, Mr Maclellan said (Hansard: p.3049 Legislative Assembly):

"The effect of the amendment is that the responsible authority must not grant a permit which allows for the removal or variation of a restriction within the meaning of the Subdivision Act - and here we are referring to covenants - unless it is satisfied that the owner of any land benefited from the restriction, other than an owner who, before or after the making of the application for the permit .......has consented in writing to the grant of the permit, will be unlikely to suffer financial loss, loss of amenity, loss arising from change to the character of the neighbourhood or any other material detriment as a consequence of the removal or variation of the restriction."

The Government rejected the amendment and it was defeated in the Legislative Assembly. It was reintroduced by the opposition in the Legislative Council and passed. In moving the amendment, the Honourable Member for Western, Mr Chamberlain, said (Hansard: p. 2385 Legislative Council):

"This amendment says that the responsible authority must not grant a permit which allows the variation or removal of a restriction within the meaning of the Subdivision Act unless it is satisfied that the owner of any land benefited by the restriction, other than a person who consents in writing, will be unlikely to suffer financial loss or loss of amenity.

If the council or the responsible authority is of the view that someone will be subjected to a financial loss or a loss of amenity arising from a change of character in the neighbourhood or any other material detriment, the council has a reason not to grant a permit and that could be subject to an appeal to the Administrative Appeals Tribunal."

The amendment was then accepted by the government in the Legislative Assembly.(Hansard: 3201; 3205 Legislative Assembly) and the Bill was enacted incorporating it as s. 60 (2).

The Act was further amended following a change of government by the Planning and Environment (Amendment) Act 1993, which inserted what is now s. 60 (5) of the Act. That section reads as follows:

"The Responsible Authority must not grant a permit which allows the removal or variation of a restriction referred to subsection (4) unless it is satisfied that -

(a) the owner of any land benefited by the restriction (other than an owner who, before or after making the application for the permit but not more than three months before its making, has consented in writing to the grant of the permit) will be unlikely to suffer any detriment of any kind (including any perceived detriment) as a consequence of the removal or variation of the restriction; and

(b) if that owner has objected to the grant of the permit, the objection is vexatious or not made in good faith.".

In introducing the Bill which led to this amendment, the Minister for Planning, Mr McLennan, said:

"In relation to covenants, or title restrictions, in place before 25 June 1991, clause 15 ensures that permits are not granted to remove or vary those covenants unless any owner of land benefiting from the covenant will not suffer detriment of any type and unless any objection by an owner is not brought in good faith. That tightens the provision in relation to covenants in place before that date when section 60 (2) of the principal Act commenced. The effect of the clause is that permits should be granted for "dead wood" covenants if no owner benefiting from the covenant objects to its removal or variation. The alternative avenues to remove or vary a covenant remain in place, being application to the Supreme Court under the Property Law Act 1958 and the preparation of a planning scheme amendment".

(see Hansard: 11 November 1993; p.1700 Legislative Assembly).

The date 25 June, 1991, is the date upon which the amendment effected by s. 60 (2) came into force. The debates provide no indication as to why the further amendment contained in s. 60 (5) was considered necessary, apart from what is stated above.

The solicitor for the Responsible Authority, Mr Montebello referred to the history of the covenant and to the fact that the burden of an identical covenant applies to every lot in the subdivision. He submitted that it was the clear intent of the subdivider that all of the lots should be subject to some form of density control.

As to the manner in which the subsection should be interpreted, he referred us to the case of Scuderi - v. - City of Hume (1998) 22 AATR 261 and in particular, to the Tribunal's summary of the principles that it espoused in paragraphs 57 and 58 of that decision on page 279 of the report, which are as follows:

"(a) It is for the Responsible Authority or the Tribunal to determine whether any covenant beneficiary "will be unlikely to suffer any detriment of any kind".

(b) This determination must be made on the evidence in the instant case including the appeal site and its environs.

(c) Compliance with the Good Design Guide does not, in itself, and without more establish that a covenant beneficiary would be unlikely to suffer any detriment of any kind. The Guide represents a balancing of advantages and detriments and once any detriment is shown the application must fail.

(d) There must be a real chance or possibility that a detriment will result. Mere assertion of belief will be insufficient.

(e) The subsection requires consideration of detriments of any kind. This raises questions as to what effect the variation or removal of a covenant would have upon the amenity of the covenant beneficiary's land. The concept of amenity includes an appeal to aesthetic judgement, which is difficult to measure, however the notion of "perceived detriment" specifically contemplates that this consideration is relevant to the enquiry.

(f) The nature of the enquiry is fundamentally different from that appropriate in an ordinary permit appeal because the former is concerned with any detriment whereas the latter, like the Good Design Guide, requires a balancing of advantages and detriments and interests between the land owners and the wider public interest.

58. The issue for the Tribunal to determine is whether it is satisfied to the requisite standard that the variation of the restrictive covenant would not, as a likelihood, cause any detriment."

Mr Montebello submitted that, in determining whether any detriment might flow if the covenant were varied, it is necessary to consider the purpose of the covenant. In support of this proposition, he referred us to the decision of the Full Court of the Supreme Court of Victoria in Re Stani delivered 7 December 1976 (unreported). That was a case involving an application to modify a restrictive covenant pursuant to s. 84 of the Property Law Act 1958. That section provides (inter alia) as follows:

"(1)The Court shall have power from time to time on the application of any person interested in any land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon by order wholly or partially to discharge or modify any such restriction ..... upon being satisfied -

(a) that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Court deems material the restriction ought to be deemed obsolete or that the continued existence thereof would impede the reasonable user of the land without securing practical benefits to other persons or (as the case may be) would unless modified impede such user; or

(b) ...................................................................

(c) that the proposed discharge or modification will not substantially injure the persons entitled to the benefit of the restriction: "

The covenant which was the subject of the application in Re Stani provided (inter alia) that only one dwelling may be erected on the subject land. The Appellant had subdivided the land into two allotments and sought modification to the covenant sufficient to permit him to erect one dwelling house upon each of the two allotments.

The application to the judge at first instance having been dismissed, the applicant appealed to the Full Court upon three grounds. First, he argued that the continued existence of the covenant impeded the reasonable use of his land. Secondly, he argued that the continued existence of the covenant would not secure any practical benefit to the persons entitled to the benefit of it and thirdly, he argued that the proposed modification would not substantially injure the persons entitled to the benefit of the restriction created by the covenant.

The appellant relied upon evidence given by a town planner to the effect that the development proposed for the subject land would add to the amenity of the area, improve the appearance of the street and would not interfere with the traffic flow in the existing streets. He also drew attention to two previous breaches of covenants on two other allotments of the same subdivision. Against this, counsel for the Objector argued that the covenant was of practical use to all of the allotments in the subdivision, in that it ensured the benefit of an area where the population density would be limited to one dwelling per allotment and protect it from the consequences of a more dense population. Numerous examples of the inconveniences of living in a more densely settled area were given and relied upon.

In refusing the appeal, the learned members of the Full Court held that the covenant did not impede the reasonable use of the land, because, having regard to the purposes of the subdivider in imposing the density restriction, to erect two dwellings on one allotment was not a reasonable user. They considered that the trial judge was correct in having regard to the purpose of the covenant in this regard. They also concluded that the trial judge was correct in finding that the continuance of the covenant would secure practical benefits to other persons, in that it would secure to them the benefit of living in an area of light population density. Their Honours said (at p.9 of the judgement):

"Moreover, we agree that any alteration to the design of the original subdivision would affect the quality of living in the area and in particular would affect those living in the immediate vicinity of lot 2 in that any relaxation of the restriction imposed by the covenant would almost certainly lead to further applications of a similar nature, resulting in a detrimental change to the whole subdivision. The fact that there have already been, in breach of the covenant, two instances of similar subdivisions of allotments ... in a very similar situation to that of the subject land, and the fact that the Applicant relied upon the existence of these breaches to support his application, point to the reality of this fear of the ultimate destruction of the original plan as designed."

The court went on to find that the detriment that the beneficiaries would suffer from the removal of the covenant was "substantial".

Mr Montebello submitted that, in the present case, similar considerations applied. He submitted that the subdivision had survived relatively intact as a low density area with little replacement of the original houses, so that the style of housing was very much that which existed in the period within which the covenant was being imposed.

He referred to the council's Residential Urban Character Study (Exhibit "K") which refers to the area of the subdivision and surrounds in the following terms:

"This area is characterised by a ridge line with multi directional views from many sites. The consistently large elevated lots have typically larger size, cream brick, often two storey houses, built during the 1950's and 1960's. Low front fences or no front fences are common.

The northern portion of the area has single dwelling covenants on houses contributing to the area's low proportion of multi dwelling developments."

Our observation of the area during our visit for the purpose of these proceedings confirms the correctness of this description.

Mr Montebello submitted that to permit higher density population in the area would be contrary to the purpose of the covenant and a detriment to those entitled to benefit from it. He also supported the Objectors' view that a variation of the covenant in this application would diminish the integrity of it, making it easier for a variation or removal the next time someone else applies in regard to another lot in the same subdivision.

He referred to the Tribunal's decision in M Grigsby and anor - v - City of Greater Geelong and anor (1997) 21 AATR 11 where the Tribunal said (p.20):

"To remove a restrictive covenant entails the extinction of a proprietary interest. This for reasons already given is not in itself a detriment, however the Tribunal or the responsible authority must be satisfied that the removal would be "unlikely" to result in detriment or a perceived detriment. To move from a situation where one has the advantage of a legally enforceable restriction to maintain what is perceived to be a higher residential amenity viz. without medium density development, to one where that restriction is removed and the planning policies favouring medium density development apply with their full vigour, constitutes at the very least a perceived detriment. Even if we were wrong in this, since medium density residential development is so prevalent and is now favoured by planning policy it would be impossible for the responsible authority or the Tribunal to come to the view that removal of a single dwelling covenant would be unlikely to lead to at least a perceived detriment to the owner of the land having the benefit of the covenant.".

Mr Montebello submitted that the covenant could not, in the circumstances, be considered to be a "dead wood" covenant, in that it continued to serve the purpose for which it was imposed that is, to protect and retain the existing character of the neighbourhood which it largely brought about.

Counsel for the Applicant, Mr Finanzio, submitted that the Responsible Authority's approach to the application of s. 60 (5) was misguided. He said that, before rejecting the application, the responsible authority had to form the view that there was a real and not a remote chance or possibility that a detriment would result to those entitled to the benefit of the covenant. He said that, in determining the question of detriment, the Responsible Authority ought to have considered the application itself and not anything that might happen in the future. In particular, he said that it was irrelevant to consider whether the granting of the present application might result in other applications of a similar kind. He said that if there were any future applications, each would have to be considered on its own merits. Any other interpretation of the section, he said, would mean that it would never be possible to remove a covenant and yet the section clearly contemplated that there must be circumstances where covenants can be removed.

He said that town planning considerations could not be ignored and that if the streetscape were maintained, the intention of the original subdivider would be preserved. He produced plans of the proposed development and referred to setbacks and dimensions.

He sought to distinguish Stani's case on the basis that it related to an application pursuant to the Property Law Act and not the present section. He also suggested that the comments of the Court were obiter dicta and should not be followed in the present case.

He submitted that the intention of the subdivider cannot be confined to there being only one dwelling on each lot for all time. It must go further than this, because the architect of a subdivision attempts to create an urban environment ie, he intends that a particular urban environment will be created and so how the proposal affects that environment must be a relevant consideration for the purposes of this application. He said that, to find otherwise would mean that s. 60 (5) would effectively rule out all applications. He said that the subsection was intended to operate as a limitation to the exercise of a general planning discretion and not to act as a prohibition. He said that if it were the intention of Parliament that no covenant should be removed, it would have said so.

Mr Finanzio further submitted that we should not find that the mere fear that an approval of the present application might create a precedent could amount to a detriment within the meaning of s. 60 (5) because such a fear is too remote, in that it assumes that:

* such an argument will be taken in future proceedings;

* a counter argument to the effect that the present application must be confined to its merits will not be taken; and

* the argument will be accepted by the responsible authority or Tribunal.

He said that if we were to accept that such a fear amounted to a detriment we would be jumping three steps ahead in regard to matters that may never occur.

Mr Finanzio said that only four objections were received out of the eighty-one properties entitled to the benefit of the covenant and that from this we should infer that there was no land benefited that would suffer any detriment. He went further and said that we should infer that those who did not object consented to or at least accepted the application. We do not accept this submission. Generally, an inference can only be drawn when there is no other explanation reasonably open and there may be any number of reasons why someone did not object. All that can be said about such a person is that he or she has not exercised a right to object.

Mr Finanzio said that there were no traditional amenity impacts from the proposal. He said the site had to comply with the Good Design Guide, even though it was more than 300 square metres in area, and that it had been developed in consultation with the council and the plans had been approved by the council. He said that the appearance of the building from the street would be in keeping with the rest of the subdivision in that it had a comparable frontage and the building had a comparable scale, size and mass to some other buildings in the subdivision. He said that it was the last site on the corner of the subdivision and so its influence on achieving the intent of the subdivision would be of limited value.

He referred to the unsympathetic redevelopment which has occurred of the old Greythorn High School site to the east of the subdivision which is a medium density development.

For all of these reasons he said that we should find that no detriment would be suffered by any of the persons entitled to the benefit of the covenant.

In our opinion, Mr Finanzio's submissions, although able, largely miss the point. What we have to consider is not whether this development should proceed from a town planning point of view, but rather, whether s. 60 (5) prevents the issue of a permit.

We find ourselves quite unable to be satisfied that the owner of any land benefited by the covenant would be unlikely to suffer any detriment of any kind as a consequence of its removal. The evidence, including our own inspection of the site and the subdivision support Mr Montebello's assertion that the subdivision has survived to the extent that the covenant is still fulfilling its original purpose, namely, maintaining the subdivision as a low density area. It is not in our view a "dead wood covenant" that no longer fulfils any useful purpose, nor is it "outdated" or "superfluous".

The clear detriment in this case is that which was described by the Full Court in Re Stani that is, that any relaxation of the restriction imposed by the covenant is likely to lead to further similar applications of a similar kind and the erosion of the benefit of the covenant, resulting in a detrimental change to the whole subdivision. The benefit of the covenant is, as the Judge at first instance in Re Stani expressed it:

"...living in an area of light population density with the great advantages that go with that circumstance"

(The Full Court agreed with his Honour's comments - see p. 9 of the report).

In Grigsby -v. - City of Geelong, the benefit was described as:

"...what is perceived to be a higher residential amenity viz. without medium density development..."

Mr Finanzio's submission that we should confine ourselves solely to this particular application and ignore the consequences of making an order in this case is inconsistent with what the Full Court said in Stani's case. Further, this Tribunal does not make orders in a vacuum. The notion that a precedent created by an order in this case might lead to applications of a similar nature in regard to this subdivision is not "remote" or fanciful by any means. It is very real.

We accept that Stani's case concerned an application under the Property Law Act but a similar consideration arose, that is, whether the proposed modification would substantially injure the persons entitled to the benefit of the restriction. We cannot see any good reason to distinguish the reasoning in that case from what we have to consider under s. 60 (5) for the purposes of the present case.

As to the submission by Mr Finanzio that such an interpretation would mean that no covenants would ever be able to be removed, it was the clear and, indeed, the expressed intention of Parliament in enacting this subsection that only "dead wood" covenants that serve no purpose are to be removed using this procedure. The term "dead wood" suggests something that once served a purpose but no longer does, and it is only covenants of that sort that can, in our view, be removed by the issue of a permit under the Act.

The "architect" of the subdivision may well have intended to "create an urban environment", as Mr Finanzio suggests, but if he did, it was a particular kind of urban environment, viz. a low density one.

In regard to the town planning considerations put forward by Mr Finanzio, we are not persuaded that the development outlined to us would not have some adverse impact on the amenity of the area surrounding the subject land but it is unnecessary for us to determine this. As was pointed out in Scuderi's case, compliance with the Good Design Guide does not in itself establish that a covenant beneficiary will be unlikely to suffer a detriment of any kind. Similarly, just because the development proposed may comply with good planning principles (and we do not so decide in this case) it does not mean that a covenant beneficiary will be unlikely to suffer a detriment if the covenant is varied to allow it to take place. The question is not whether the development proposed is a good one from a town planning viewpoint but rather, whether the beneficiary would suffer a detriment. In Stani's case, one of the complaints made by the Applicant at the hearing of the appeal was that the trial judge had not placed any reliance on evidence led on behalf of the Applicant by a town planner as to the merits of the proposed development. The trial judge had said that he found the evidence of the town planner "interesting" but that "...it really did not touch the problem." As to this, the Full Court agreed, and said, at p. 6 of the judgement:

"It is of course true that the Court was not concerned with town planning considerations, as has been pointed out more than once in the authorities: see for example, the observations of Adam J. in Re Robinson [1972] VicRp 28; [1972] V.R. 278 at p. 285."

In the case of Re Robinson referred to, Adam J. was concerned with an application under s. 84 to discharge or modify a covenant whereby no building could be erected on the subject land other than a private dwelling house of a stated minimum cost. The Applicant wished to build shops on the land, which was the only use to which it could lawfully be put, according to the applicable Planning Scheme. His Honour held that, although that circumstance had relevance for the purposes of considering whether the reasonable use of the land was impeded by the covenant, it was irrelevant in considering whether the discharge or modification of the covenant would "substantially injure the persons entitled to the benefit" of the covenant. His Honour said (at p. 285):

"Whether or not it would be advantageous as a matter of planning to permit of this development here seems to me quite beside the point. My jurisdiction is limited to what is set out in s. 84, and if the discharge or modification proposed would interfere with those who have the benefit of the covenant they cannot be forced, as it were, to surrender the full benefits of the covenant. It is for the Applicant in a case of this sort to show there is no real benefit at all from continuing the covenant into which he or his predecessors have entered, and that, I find, is not this case...........................................

It may be assumed that the various purchasers bought this property confident that its character was not going to change from that of a purely residential area, and they are entitled to maintain that position."(sic.)

This case comes before us as the Planning List of the Tribunal. However, in dealing with it, we must determine whether s. 60 (5) applies. That task does not involve a careful weighing of benefits and detriments of a proposed development proceeding. For the purposes of subsection (a) we can only consider detriment and, as stated in Scuderi's case, once a detriment to the person entitled to the benefit of the covenant is found, the section operates to prevent the issue of a permit.

This is not to say, of course, that a detriment to a beneficiary of the covenant might not also be a relevant consideration in determining a planning dispute, but the focus is quite different. In the one case, the inquiry is whether the proposed development should proceed on planning principles. In the other, it is whether the Tribunal is satisfied that no beneficiary of the covenant will suffer a detriment if the covenant is removed or varied. The authorities referred to establish, correctly in our view, that to vary, in the manner sought, a covenant such as this, which is continuing to fulfil its original purpose, would result in detriment to those entitled to the benefit of it.

Accordingly, the decision of the responsible authority refusing the permit was correct .

This is sufficient to dispose of the appeal, but the industry and ingenuity of counsel warrant a consideration also of what was submitted in regard to subsection (b).

In regard to the second limb of section 60 Mr Montebello relied upon the decision of the Tribunal in Jatka - v - City of Boroondara 1998/06087 (unreported) in which the Tribunal said (at page 15 of the decision):

"It is my view that correctly interpreted, paragraph (b) requires an assessment of whether any objections lodged are untenable or unarguable. I believe the test in paragraph (b) is different from the test included in paragraph (a). Mr Stewart's view is correct, I believe, that the test under (a) is the likelihood that a real detriment would result, but the test with respect to paragraph (b) is not the probable detriment would occur, but rather consideration needs to be given as to whether there is a possibility of detriment, which is neither fanciful nor remote. That is, it is sufficient to find that there is a prospect of detriment, rather than a probability. If there is such a prospect, it lends the objections of valid foundation, and means that they have not been instituted without sufficient grounds (and hence are not vexatious).".

Mr Montebello said that the concerns of the four Objectors in this case could not be said to be untenable or unarguable. He said that they were all made in good faith and out of a genuine concern for the protection of the covenant that applies to the land and the benefits which it has provided them with. He said that there was no other motivation for the objections apparent on the evidence.

Mr Finanzio suggested that we should find that the opposition to the application was part of an orchestrated campaign by the neighbours to defeat it. He referred to the evidence given by Mr Phillips as to the manner in which the documents forming exhibit "B" came to be collected and referred to the comments of the Tribunal in the case of Carson Simpson Pty Ltd - v. - City of Maroondah and anor (1998) 1 VPR 132 and Wilde - v - City of Moonee Valley (1996) 18 AATR 145.

He sought to draw a parallel between the objectors in the Wilde case and those in the present case, on the ground that, in each case, there was evidence of an orchestrated campaign by residents against the proposal.

Mr Finanzio said that there was no detriment to any of those benefited by the covenant and accordingly there could be no valid ground for them lodging an objection. He drew our attention to the meaning of the word vexatious in other contexts including "so obviously untenable that it cannot possibly succeed", "without sufficient grounds and for the purpose of causing trouble or annoyance" and "unnecessary and harassing against the other party".

He said that we should infer from the activities of Mr Phillips and others in producing exhibit "B" that there was a lack of bona fides on the part of the people involved. He pointed to the pro forma nature of the documents that the parties had signed and suggested that Mr Phillips was not aware of the type of development proposed for the site until the first day of the hearing of this matter.

He said that the objections could not be said to be "made in good faith" because it was obvious, he claimed, that no detriment would flow to the people who objected if the application were to be granted. He said that the matter must be looked at objectively and that the mere belief of the Objectors that they will suffer detriment is insufficient. He referred to the case of Eldridge and Morrison -v - City of Camberwell (19 May 1993 - unreported) a decision pursuant to s. 60 (2).

We do not accept Mr Finanzo's submission that an objection is not bona fide or made in good faith if the detriment that the objector perceives is ultimately found not to exist. A party's case cannot be said to have been vexatious just because it has failed. A party, or more relevantly, an objector, is not required to meekly submit to an application because he might ultimately be unsuccessful in opposing it. If he objects to an application he is entitled to make his objection and, assuming that this is done in the proper way, he is entitled to have his objection considered by the Responsible authority and ultimately, by this Tribunal. In the Wilde case the Tribunal referred to the case of Attorney General of New South Wales -v.- Wentworth (1988) 14 NSWLR 481, where the court considered the circumstances in which legal proceedings would be considered "vexatious": Roden J. said (at p. 491):

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless."

In the case of Burton -v.- Shire of Bairnsdale [1908] HCA 57; (1908) 7 C.L.R. 76 O'Connor J. said (at p. 92):

"Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed."

An objection in accordance with the Act is the means whereby the person objecting asserts the right that the Act gives him to oppose an Application. It opens the way for him to be heard when the responsible Authority or the Tribunal determines the matter. It cannot be considered "vexatious" in our view unless the opposition that it raises is so obviously untenable that it cannot possibly succeed

We are not satisfied that the four relevant objections in this case were vexatious or not made in good faith. We have no reason to believe that they were made otherwise than out of a genuine concern to avoid what the objector in each case perceived to be a detriment that is, a weakening of the protection that each of them enjoys from the covenant over the subject land and from similar covenants over the other land in the subdivision . We are not satisfied that this perception of detriment was so fanciful or remote as to be irrational or that the objections themselves were "...obviously untenable or manifestly groundless as to be utterly hopeless ..." or "..brought for a collateral purpose."

The objections which are relevant for the purpose of s. 60 (5)(b) are the four handwritten letters from the individual objectors. They do not on their face appear to have been solicited by Mr Phillips or by anyone else. These objections cannot be coloured by the activities of Mr Phillips in collecting the documents which form exhibit "B", which are irrelevant for the purposes of subsection (b).

We should add that, simply because an objector is encouraged to object by a third party does not mean that the objection is vexatious or not bona fide. As was stated in the Wilde case:

"I do not mean .... that it is misbehaviour of people to awaken others to possible threats to their rights, including rights deriving from a restrictive covenant. On the contrary, that may be a laudable thing to do. It would be mischievous however, to induce false beliefs and misguided actions by disseminating misinformation."

The fact that an objection has been solicited is just one of the matters to be taken into account in determining whether it represents a genuine objection by the person concerned or whether it is, in reality, some other person using the objector's name. Another matter of relevance would be if the proponents of the campaign were procuring signatures by false or misleading information, as apparently happened in the Wilde case. The ultimate question is whether the objection is a genuine one, in the sense that the named objector really does object to the application, and the grounds for the objection include the reasons stated in the form of objection that has been used.

For these reasons, we are not satisfied that the requirements of subsection (b) have been met.

The order of the Tribunal is that the decision of the Responsible Authority is affirmed. A permit is not granted.