[2003] VCAT 1152

1. The Order of the Tribunal is that the Responsible Authority is directed to issue a planning permit in Permit Application 2002/7892 for the variation of the terms of the covenant contained in Instrument of Transfer 1255885 dated 6th March 1926, affecting the title Volume 5132 Folio 237, to delete the words "one building" and substitute "two detached dwellings", and for the construction of two dwellings on the site at 198 Ludstone Street, Hampton generally in accordance with the plans substituted at the hearing P534/2003 on 6 June 2003.

2. The Permit must include the following conditions:

1. The subject land must be developed only in accordance with Permit 2002/7892 issued by Bayside City Council pursuant to the Order of the Tribunal in Review P534/2003, and the endorsed plans which form part of that permit.

2. This permit will expire if the covenant has not been varied within two years of the date of this permit. The Responsible Authority may extend this time if a request is made in writing before the permit expires or within three months afterwards.

3. Before the development starts, three copies of revised plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the Permit The plans must be generally in accordance with the plans substituted at the VCAT Hearing P534/2003 on 6th June 2003, but modified to show to the satisfaction of the Responsible Authority:

a) Levels to AHD and finished floor levels to confirm the difference between finished floor levels of both dwellings, and existing and future ground levels measured directly below.

b) All wall heights above existing and future ground levels to be nominated on the plans.

c) All paving (except driveways) to be permeable. Details of the permeability of the paving must be supplied to the satisfaction of the Responsible Authority.

d) A schedule of all external materials and finishes to be provided to the satisfaction of the Responsible Authority prior to the commencement of any buildings or works on the land. The schedule shall show the materials, colour (including colour samples) and finish of all external walls, roof, fascias, window frames, and paving (including driveways and garages)

e) All plant and equipment (including air conditioning units, heating units, hotwater systems etc) which is proposed to be located externally shall be identified on plans and located to the satisfaction of the Responsible Authority. Such equipment should be located away from bedrooms of adjoining dwellings.

f) The garages internal dimensions to be 6.0 metres long by 5.5 metres wide with minimum door opening of 4.8 metres.

g) The floor level of the rear dwelling is to be at least 150mm above the existing ground level at the southern (rear) boundary.

4. The development as shown on the endorsed plans must not be altered or modified (whether or not to comply with any statute, statutory rule or for any other reason) without the prior written consent of the Responsible Authority.

5. Before the development starts, a site layout plan drawn to scale and dimensioned must be approved by a Building Practitioner registered under the Building Act 1993, and submitted to the Responsible Authority. The plan must show a drainage scheme providing for the collection of stormwater within the site and for the conveying of the storm water to Council's nominated point of discharge, to the satisfaction of the Responsible Authority.

6. Before occupation, all buildings and works specified in this permit must be completed to the satisfaction of the Responsible Authority. The Responsible Authority must be advised in writing when all construction and works are completed to enable the site to be inspected.

7. This permit will expire if one of the following circumstances applies:

* The development and use is/are not started within two years of the date of this permit.

* The development is not completed within two years of the date of commencement of the works.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

8. Street numbers contrasting in colour to background must be fixed at the front boundary of the property as near as practicable to, or on the letterboxes in order to clearly establish the identity of the property. Separate numbers shall be affixed to the front entrance of each dwelling, such numbers to be clearly legible from the access driveway.

9. All service pipes, (excluding downpipes and gutters), fixtures and fittings must be concealed on exposed elevations to the satisfaction of the Responsible Authority.

10. All brickwork on or facing the boundaries of the site must be raked and cleaned or rendered or bagged and painted to the satisfaction of the Responsible Authority.

11. Before the development starts, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:

a) constructed to the satisfaction of the Responsible Authority;

b) properly formed to such levels that they can be used in accordance with the plans;

c) surfaced with an all-weather sealcoat to the satisfaction of the Responsible Authority; and

d) drained, maintained and not used for any other purpose to the satisfaction of the Responsible Authority.

12. Before the development hereby permitted starts, three copies of a Landscape Plan must be submitted for approval by the Responsible Authority. The plan must show the proposed landscape treatment of the site and include supporting information to the satisfaction of the Responsible Authority. In particular, the plan should be to a scale of 1:100 or 1:200 and show:

a) Accurate location of boundaries, existing and proposed built elements, neighbouring buildings and / or vegetation that may affect or be affected by the proposed development and landscape.

b) Accurate location and identification (botanical name) of existing vegetation to be retained and / or removed.

c) Tree protection Zones as required by the Responsible Authority.

i) Areas proposed to be lawn, pavements, garden beds, other landscape features.

ii) Proposed tree locations, shrub and ground cover groupings climber locations;

iii) A plant schedule consisting of an itemised list of all proposed species, heights and widths at maturity, installation size of trees (only), container size (for all other plant groups, total quantities for each species.

e) Supporting notes on the plan which elaborate on specific requirements for the proposed landscaping,

f) A legend that explains any graphic symbols used on the plan.

13. The alterations of soil levels involving an increased or decreased level at the boundaries must be retained by the provision of an adequate retaining wall, constructed of brick or masonry or other suitable alternative approved by the Responsible Authority, to buttress the soil against the possibility of shift. The construction of this retaining wall shall be the sole responsibility of the developer.

14. Prior to the use allowed by this permit starting or the occupation of the buildings hereby permitted, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

15. All basic services, including water, electricity, gas, sewerage and telephone, shall be installed underground and located to the satisfaction of the Responsible Authority.

16. Before any construction or demolition works commence on the site, to the extent that the site perimeter is unfenced and/or is not fenced to the satisfaction of the Responsible Authority, a secure fence is to be erected around the perimeter of the site to prevent access to the site from unauthorised persons. This fence is to be maintained for the duration of the construction and demolition, be a minimum height of 1.8 metres or such alternative height as is approved by the Responsible Authority and to be constructed and sited to the satisfaction of the Responsible Authority. The gate or opening to the fence must be securely locked at all times when work has ceased on the site.

17. Before any construction or demolition works commence on the site, to the extent that the site perimeter is unfenced and/or is not fenced to the satisfaction of the Responsible Authority, a secure fence is to be erected around the perimeter of the site to prevent access to the site from unauthorised persons. This fence is to be maintained for the duration of the construction and demolition, be a minimum height of 1.8 metres or such alternative height as is approved by the Responsible Authority and to be constructed and sited to the satisfaction of the Responsible Authority. The gate or opening to the fence must be securely locked at all times when work has ceased on the site.

18. All disturbed surfaces on the land resulting from the development / building and works authorised or required by this permit shall be revegetated and stabilised to the satisfaction of the Responsible Authority so as to prevent any erosion or siltation either on or adjacent to the land.

19. The driveway and paths must be graded or drained in such a way that stormwater from them does not flow onto the pathway of Ludstone Street, or into adjacent properties.

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For the Applicant for Review: Mr John Cicero, Solicitor of Best Hooper Solicitors appeared on behalf of Mr John Beaumont.

For the Responsible Authority: Ms Jennifer Bowdern, Legal Support Planner of Bayside City Council appeared on behalf of the Responsible Authority.

For the Respondent/Objectors: Mr Raymond Tyers appeared on his own behalf.

There was no appearance by or for Messrs McCreery or MacQuarrie as both had decided to withdraw their objections, on the basis of amended drawings acceptable to them, being agreed to be substituted at this hearing.

Both the Responsible Authority and the Permit Applicant had written and verbal submissions

tendered on their behalf, and a number of photographs, plans and other documents were tendered to the Tribunal at the hearing. Mr Tyers relied on a document comprising two pages dated 3 June 2003 received by the Registrar on 5 June 2003, and he made oral submissions relating to the matters in that document. All of the material presented has been retained on the Tribunal file and taken into consideration. The subject site, adjoining properties and the locality have been inspected by the Tribunal following the hearing.

1. This is an application pursuant to s.79 of the Planning and Environment Act 1987, brought by the Permit Applicant against the failure of the Bayside City Council as Responsible Authority, to determine Permit Application 2002/7892 within the prescribed time.

2. At the commencement of the hearing, Mr Tyers sought leave to be joined as a party in this matter. Mr Tyers had lodged a Statement of Objection to the Responsible Authority which apparently was received on 6 November 2002 by the City of Bayside. This factor was known by the Permit Applicant and his advisers, however Mr Tyers had failed to lodge a Statement of Grounds with the Tribunal, after being notified of the review application having been lodged, and had also failed to properly seek to be joined as a party, when sent the appropriate forms by Best Hooper Solicitors by way of notification that they intended to seek the substitution of amended plans for those originally submitted with the application. It appears that the date of hearing has been "brought to his attention" by an Officer of the Bayside City Council calling him and it was this call which generated the letter dated 3 June 2003 addressed to the Senior Registrar VCAT, which was firstly faxed to the Tribunal arriving that day, with the original arriving the day before the hearing. I am unsure whether notice was also provided to both Council and Best Hooper or not, however after some discussion regarding his reasons for ignoring earlier opportunities to follow the proper course, Mr Cicero for the Permit Applicant stated that he would not oppose Mr Tyers being made a party as he considered that the objectors position was both untenable and vexatious. The Council indicated that it welcomed the generosity of the Permit Applicant in respect of this lack of opposition and did not oppose the Tribunal admitting Mr Tyers as a party to the matter, which I then agreed to pursuant to the powers available in the Tribunal Act.

3. A secondary preliminary matter related to the substitution of revised plans and Mr Cicero confirmed that copies of sets of revised plans bearing "Revision A 26 March 2003" of drawings TP01-TP18 had been supplied to the Responsible Authority, the Tribunal and the other parties with the necessary brief description of the changes made, and relevant forms A and B. There was no opposition to the substitution by either the Responsible Authority or Mr Tyers and noting that the amendments made were substantially intended to respond to concerns previously expressed by the Urban Designer of the City of Bayside and Council Officers, I granted the request pursuant to Clause 64, Schedule 1 of the VCAT Act.

4. The property is regular in shape and dimensions with a frontage to Ludstone Street of 15.24m, a depth of 51.43m, and a site area of approximately 784m2. It is currently improved by a single storey brick veneer dwelling, located on the south side of Ludstone Street approximately 49m to the west of Bluff Road.

5. Architectural styles of residences in the immediate vicinity of the review site vary from post-war, inter-war, 1960s and 70s with a number of modern two storey detached dwellings and recent dual occupancy and multi dwelling developments. Setbacks from Ludstone Street appear to me, to also vary quite considerably between the more recently completed multi dwelling developments on the corner of Bluff Road and Ludstone Street (both sides) and the remaining single storey weatherboard and brick veneer dwellings further to the west which are sometimes 9m setback and at other times slightly less than 7m.

6. Materials of construction and roofing materials and colours also vary, as does the extent and the standard of gardens.

7. Ludstone Street carries a significant level of traffic, with unrestricted parking on-street.

8. Ms Bowdern quoted in her description of the area, from the Urban Character Report Area G which identified dominant characteristics as well as a future Character Statement which in part states:

The area should develop an Urban Character based on the progressive redevelopment of existing housing stock as a "garden residential" area. New development and dwelling extensions should retain a consistent low scale and reinforce the development pattern of detached villa or unit style housing. The area should be managed to further develop the relationship between the house and garden settings and the general streetscape.

The siting of new developments and extensions should reflect established setback patterns for all boundaries and develop within those setbacks, garden settings which reinforce both the character of the location and the relationship of private gardens to the street.

9. The proposal is to construct a double storey dwelling towards the front, and a single storey dwelling towards the rear with double garages being provided for each dwelling. Access to the garages is via a common driveway. The plans label the front dwelling "Unit A" and the rear dwelling "Unit B".

10. Unit A provides three bedrooms on the first floor level with the lounge, dining and kitchen, entrance and laundry at ground floor level.

11. Three bedrooms are also provided in Unit B, which also has a lounge/dining/kitchen area and two paved courtyard areas, within courtyards created by the two garages. A skylight above the lounge which is located in the centre of the building is intended to capture northern light. Both units have metal deck roof cladding (described as flat by Ms Bowdern) with no eaves. Walls are a proposed mixture of face brickwork, with aluminium framed glazing, metal panels, aluminium sun louvres and timber balustrades. The garage doors are proposed to be built with metal panels. The various surfaces and appearances are well shown on the elevations of both units, which also provide AHD values for the ground floor and from that, heights of ceilings and upper floor of Unit 1 can be calculated.

12. There are four areas where it is clearly indicated some landscaping is to occur, however the plans provided to the Tribunal do not provide either site levels or details of the species of trees or plants proposed, notwithstanding the symbolic representations of both small and taller trees being added to those plans. It is unfortunate, that the Council overlooked providing the Tribunal with a copy of an existing conditions and level survey plan provided by the Permit Applicant in their submission of material in support of the application, however this plan was sighted by me during the course of the hearing and it is my recollection that the site falls less than 1m from the south to the north towards Ludstone Street.

13. I note that Unit A is setback 7.6m from Ludstone Street alignment, with a slatted timber fence 1.5m high on a concrete retaining wall setback 1.5m from Ludstone Street frontage with planting also intended in front of the fence. Double gates are setback also 6m across the common driveway with a landscaping strip 1m wide along the eastern boundary of the driveway.

14. In order for this particular format or scheme of redevelopment to be approved, it is necessary to vary the existing covenant encumbering the land as two buildings are proposed. The Covenant was the result of Transfer 1255885 in 1926 of the subject land (described as Lot 60 Plan of Subdivision 7916). The application form described the proposal for which planning approval was sought, in the following manner.

Construction of two dwellings and the variation of the covenant contained in the Instrument of Transfer 1255885 by the deletion of the words "that not more than one building with the usual and necessary additions and conveniences thereto shall be erected on the said land hereby transferred".

15. The land and surrounding area is all included within the Residential 1 Zone of the Bayside Planning Scheme. Clause 52.02 of the Bayside Planning Scheme relates to easements, restrictions and reserves and pursuant to that clause, a permit is required before a person proceeds under s.23 of the Subdivision Act 1988, to "create, vary or remove an easement or restriction or vary or remove a condition in the nature of an easement in Crown grant".

16. Section 60(5) of the Planning and Environment Act 1987 sets out the standard of satisfaction to be held by the Responsible Authority and this Tribunal on review, before any modification to a covenant created prior to 25 June 1991 can be granted. Section 60(5) provides as follows:

5. The Responsible Authority must not grant a permit which allows the removal of variation of a restriction referred to in 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 the making of the application for the permit but not more than three months before its making, has consented in writing to the grant of a permit) will be unlikely to suffer any detriment of any kind (including any perceived detriment) as a consequent 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.

17. Pursuant to Clause 32.01-4, a planning permit is also required for two or more dwellings on an allotment, and the provisions require the proposal to be assessed against the Standards and Decision Guidelines in ResCode found in Clause 55 of the Scheme.

18. In her written submissions, Ms Bowdern drew the attention of the Tribunal to the provisions of Melbourne 2030, and Amendment C to the Bayside Planning Scheme and to Council policies relating to the "Assessment Criteria for Multi Unit Residential Development", and the "Urban Character Study" of the municipality. I will refer to these matters again later in the basis of decision part of these reasons.

19. Ms Bowdern on page 6 of her written submissions, provided in paragraphs 6.1 through 6.6, a summary of the history of the application and its processing by the City of Bayside.

20. I am unable to confirm the total accuracy of that information, as the City of Bayside have once again failed to provide the Tribunal with copies of a lot of the documentation provided to it by the Permit Applicant, or of material sent by the City of Bayside to the Applicant referred to by Ms Bowdern in her paragraphs 6.2, 6.3 and 6.4 which I am advised related to concerns then held, requirements issued for advertising the application, the applicant requesting Council to defer making a decision pending negotiations with objectors, and Council requesting further information or in clarification of the design. Based on advice given to me by Mr Cicero and from my study of copies of material he tendered to me during the course of the hearing, the City of Bayside patently failed in its responsibility to supply all of the information required by Practice Direction No. P2 when on 27 March 2003, it supplied photocopies of a limited number of documents only. In fact in the covering letter of that date, the Tribunal was advised that "notice of the application was required to be given by erecting a public notice on the site and notifying the adjoining and opposite owners and occupiers of the site. A notice was also placed in the Bayside Leader". This was clearly totally incorrect, and not all that was required or actually undertaken, as there are apparently 195 properties benefited by the covenant, all of which were created as lots on PS7916 as listed by Mr Cicero in his written submissions to the Tribunal on page 3. He provided to the Tribunal during the hearing, a list of the names and addresses on whom notice of the application was served, and I understood him to say that due to a mistake with one of the mailings by the Council, a second mailing was required to ensure that any benefiting party had been notified. There was no dispute regarding this aspect by Ms Bowdern.

21. Other material originally lodged included a document prepared by the firm `Site Matters' being a ResCode "Neighbourhood and Site Description and Design Response" running to 22 written pages and three plans including a streetscape diagram and a design response plan (and presumably also a site analysis plan). These were not provided to the Tribunal by the Council. Mr Cicero provided the Tribunal with a copy of this document and plans, also during the hearing.

22. A survey plan drawn by J R Edwards LS providing levels to AHD and other information was not supplied to the Tribunal but was seen by me during the course of the hearing. Letters requesting further information and the response given, and expressing concerns of Council officers, which resulted in the Applicant for Permit substituting modified plans, were also overlooked. I understand that a very belated officer report may have been generated, but may have only been supplied to the Permit Applicant and not to this Tribunal. This apparently introduced additional concerns felt by the officer of the Council assessing the merits of the proposal. I have expressed during the course of the hearing my concern that the process at the City of Bayside of collating and providing to the Tribunal, information in satisfaction of Practice Direction P2 appears to be seriously flawed, when so many important and relevant documents are overlooked or not provided for some other reason. In fact, I directed Ms Bowdern to consult with her colleagues especially with the Manager Planning and Building Mr. Mangan, (whose name is at the foot of the letter to the Tribunal dated 27 March 2003), so that their procedures are tightened so that such oversights will never occur again. I am even concerned to note that the Council letter advised there were seven Objectors in this matter, whereas Mr Cicero/Best Hooper, served notice of the application for review on eight persons described as Objectors, (his list correctly or incorrectly included S. Patterson of 94 Ludstone Street).

23. In any event, I accept that the advertising of the permit application has been satisfactorily completed, and I accept the specific assurances given to me by both Mr Cicero and Ms Bowdern, that all beneficiaries of the covenant have been identified thoroughly, and notified, with only one person choosing to object and pursue that objection before the Tribunal, and that is Mr Raymond Tyers.

24. In his letter dated 3 June 2003 to the Tribunal, Mr. Tyers stated the following reasons for his objection to what he described as the proposed `removal' (rather than `variation') of the covenant:

The removal of the covenant from 198 Ludstone Street Hampton will set a precedent and will allow the removal of covenants from other properties in the area, in particular those properties adjoining my property, that have identical covenants as that contained in instrument of transfer for 198 Ludstone Street Hampton. The removal of covenants would allow developers to increase their construction of high-density buildings eg. Units / town houses in the area, giving negligible consideration to the impact on others living in Hampton. The continuation of such development will further increase:

* Decrease in valuation of adjoining properties.

25. At this point, it is appropriate to record that the Tribunal has received from Mr McCreery, in addition to his statement of grounds dated 24 March 2003, a letter dated 26 May 2003 indicating that he wished to withdraw his objection to the development provided that the amended plans showing a single storey dwelling at the rear of the property were accepted, and the fact that he had notified the other parties about that withdrawal. Similarly, a letter from Mr MacQuarrie dated 4 June 2003 addressed to the Applicant was tendered by Mr Cicero also confirming his wish to withdraw his objection provided the revised plans were accepted by the Tribunal and Council.

26. It is my understanding that both these parties were not owners of properties which benefited from the covenant affecting the review site, and as expressed in their letters, their concerns related to the original building at the rear of the site being two storeys, and that parking problems were anticipated arising from the redevelopment.

27. There are two principal matters before me which need to be considered and decided. The first is whether the Tribunal is barred under Section 60(5) from issuing a planning permit for a variation of the covenant.

28. The second is related to the merits of the revised plans and whether they are appropriate as a form of development which justifies a planning permit being granted in the circumstances of the site. As part of that assessment, I need to consider whether a draft set of conditions presented by Ms Bowdern for the Responsible Authority are not only appropriate, but whether they are necessary and adequate in the circumstances and context of the site and the revised plans which have been substituted.

29. Of primary importance is the question of the covenant and the need for its variation so as to permit the proposed redevelopment.

30. I intend to deal with that matter first, and then deal with the planning merits of the application, second.

31. I have set out above in paragraph 16, the provisions of Section 60(5) of the Planning and Environment Act 1987.

32. Both Ms Bowdern and Mr Cicero agreed that only one objection was received from a beneficiary of the covenant. Council contends that there is some merit to the Objectors' claims, and accordingly Council consider they were unable to issue a permit as they did not consider that the objection was lodged in any other manner than in good faith, and that it was not vexatious. Ms Bowdern argued for the Council that the tests set out in Section 60 have not been met and on that basis Council had no option but to refuse the application for two dwellings and for the variation of the restrictive covenant.

33. Mr Tyers briefly spoke to the reasons for his objection as set out before. He also claimed he had no doubt that the property he has recently purchased at 58 Kingston Street, Hampton has a similar restrictive covenant however he does not know how many parties have the benefit of the covenant over his land. He does not live at that site, rather in a unit at 32 Barnett Street, Hampton. The distance between 58 Kingston Street and the review site was estimated by Mr Cicero to be approximately 1.1 kilometres, a distance not proven but which I accept having driven around the area inspecting the property owned by Mr Tyers and travelling along Teddington Road, Raynes Park Road, Kingston Street, Earlsfield Road and Ludstone Street, during which travel, I observed and took particular note of a number of the properties which have been identified as having the benefit of the covenant, appear to have been redeveloped for either two new homes, or for a second dwelling being built on a single original parcel, and information tabled at the hearing confirmed that a number of sites had also been further resubdivided since LP7916 created the original parcels many years ago. The area does not seem to me, to be one of totally detached single dwellings, or one building per allotment, as might have existed at some point in time in the past, or been intended at the time when the original transactions (which created the subject covenant in 1926 or thereabouts) took place.

34. For the Permit Applicant, Mr Cicero drew my attention to a series of decisions of the Tribunal and provided copies. These included Scuderi v Hume City Council [1998] VCAT 334, Ingberg RC v Bayside City Council [2000] VCAT 2407, Tsaousis v Bayside City Council [2001] VCAT 1578, and also referred in his written submissions to a number of other cases both reported and unreported. He quoted a number of those Tribunal decisions and the basis for those decisions with approval. He drew my attention to the specific language of the existing covenant, which he argued and I agree, is not a single dwelling covenant, but a covenant which seeks to prohibit more than one `building' on the land. He provided a copy of the Supreme Court decision in Re Derham's application [1961] VicRp 27; [1961] VR 174 when it was held that a covenant "not to erect more than one building (other than the usual outbuildings) nor any building which shall not be constructed of brick, stone or concrete and which shall be used for residential purposes only ..." did not prevent the erection of one brick building containing a number of self-contained flats. On this basis he argued that the Applicant could build a four storey building with twelve flats in it on the review site and this would not be in contravention of the existing covenant.

35. In response to a question I put to him, regarding what would be left to the covenant after the variation which was unambiguously requested in the permit application, Mr Cicero acknowledged that it would be appropriate to amend what was being sought and formally applied to amend the planning permit application so that the two words "one building" are the only words to be deleted, and that they should be replaced with "two detached dwellings." The remaining words previously sought to be deleted (see paragraph 14 above) would then remain, so it would then read:

"that not more than two detached dwellings with the usual and necessary additions and conveniences thereto shall be erected on the said land hereby transferred."

[Tribunal note: the three words in bold type are for emphasis of the words substituted]

36. Ms Bowdern expressed reluctance to consent to the modification to the application, now sought by Mr Cicero. I advised the parties at the hearing, that I would not be granting the amendment to the Application, until such time as I had considered my decision on all of the issues, having consideration to all that was put to me during the hearing and in writing, and that my decision in respect of this request for an amendment would be set out in my order.

37. Having given much consideration to the cases referred to above and the reasoning of the Tribunal in those cases, I find myself in sympathy with the view which Mr Cicero urged me to accept that no benefiting owner, whether an objector or not, is likely to suffer any detriment from the proposed variation of the covenant in the manner now sought by him on behalf of Mr. Beaumont, on the basis of the Form of redevelopment shown on the substituted plans. As set out by Deputy President Bruce in Ingberg, when quoting from the Tribunal's findings in Carrabot V Hume City Council & Scuderi [1998] 22 AATR, "there must be a real chance or possibility that a detriment will result, mere assertion or belief will be insufficient". In terms of whether the objection by Mr Tyers is vexatious or not, clearly depends upon the particular grounds of objection raised by him relating to his circumstances. I was not persuaded that the reasons advanced for his opposition to the proposal to vary the covenant so as to build the two proposed houses were anything but sincere, nevertheless, I find that his objection is "obviously untenable or manifestly groundless" to the point where in my view it should be found to be vexatious in the sense described and quoted by Deputy President Bruce from Roden J in Attorney General for NSW V Wentworth (1998) 14 NSW LR 481 at 491, as also applied by Eames J in Attorney General for Victoria V Kay [1999] VSC 30 (3 February 1999), and Kellam J in Attorney - General for Victoria V Lindsay (unreported, 16 July 1998). She quoted at paragraph 99 of Ingberg the tests used in those cases, as to whether objections were vexatious or not as follows:

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 ... ... ...

38. It is this third test which I find applicable in the case of Mr Tyers and his objection in this matter.

39. In my opinion, the possibility of any detriment arising as a result of the matters raised by Mr. Tyers, is extremely remote, and that there is no real chance or possibility.

40. It follows that I reject the contention put on behalf of the Responsible Authority, that they and this Tribunal are barred from granting a variation to the terms of the covenant as now sought, on the basis of the material and plans before me.

41. I have therefore determined to grant the amendment requested to the Planning Permit Application, to amend the purpose sought, to that set out above in paragraph 35 of these reasons.

The Planning Merits of the Substituted Proposal

42. Turning now to the merits of the redevelopment proposal, I have mentioned the concerns previously expressed by two nearby objectors to the superseded scheme. These concerns related to the design including a double storey dwelling at the rear of the site, and the prospect of car parking problems in Ludstone Street being accentuated.

43. The revised plans with a single storey building at the rear, have clearly satisfied their concerns to the point where those objectors have formally withdrawn from this proceeding in anticipation that the amended plans shown to them were likely to be substituted (as has occurred).

44. The question about car parking on street in front of the site, was not actively pursued at the hearing, and I do not find it to have significant merit or influence on my decision. Parking on street is not restricted at present, and while relatively close to Bluff Road, I consider sufficient parking spaces have been provided on-site, and for visitors, I expect enough parking spaces will normally be available on Ludstone Street, and those numbers are not reduced by this proposal.

45. The Council are understood to have expressed concerns firstly in October 2002, and later in February 2003. Those October 2002 concerns were summarised by Ms Bowdern in her paragraph 6.3, which I repeat here as being generally complete and accurate, in the absence of a copy being provided of the October 2002 letter setting out them, or other concerns, in a more comprehensive manner. She said:

"On 14th October 2002, Council wrote to the Applicant expressing concern about the visual bulk of the proposal and impact on the streetscape, adjoining properties and neighbourhood character. The Applicant was also alerted to Council's concern regarding two (2) storeys at the rear of the site."

46. Mr Cicero who I assume has the October 2002 letter, disputed the underlined sentence. He claimed (his para 29):

"Of particular note is that in the first advice given to the Permit Applicant there was no concern expressed in respect of the upper level of the rear unit. That concern appears to have been raised by the Responsible Authority's urban designer.'

47. In support of this contention, he supplied the Tribunal (as his attachment 10), with a copy of the 10th February 2003 Council letter, as well as a photocopy of the file note by the Project Architect about a conversation that day with Kieran O'Leary the Planning Officer of Bayside City Council. Omitting formalities, the Council letter states:

"I advise that Council has the following concerns with regard to your proposal:

1. The garage door material should contain contrasting colour and material.

2. The height of materials for the front fence details need be clarified.

3. The eastern façade (lounge room) of dwelling 1 should incorporate greater articulation with additional windows and varied setbacks.

4. The storage area included in the double garage for dwellings 1 and 2 should not be included as part of the 6.0 meter x 5.5 metre area.

5. The landscaping along the eastern boundary should extend to within 15.5 metres of the garage for dwelling 2. The landscaping to be deleted must incorporate the accessway, as this area is required for turning movements.

6. The front gates should be setback 6.0 metres from the building line, so a vehicle can wait off the footpath for the gates to open (if automated) and to manually open and close.

Having regard to the above, please advise Council how you would like to proceed with the application."

48. I highlight and accept the point made by Mr. Cicero for the Permit Applicant, that there is no reference even in February 2003 from Council in letter form, to the rear unit being modified to remove the upper level, or any concern being expressed about the roof of each dwelling being proposed as a flat (or nearly flat, as distinct from being pitched), or the driveway being uncharacteristically straight, which were the particular design characteristics raised and criticised by Ms. Bowdern at the hearing.

49. The file note supplied to me from the file of the project Architect (of a conversation held with Mr. O'Leary on the 10th February 2003, the same date as the letter quoted above) refers to several comments apparently attributed to the Urban Designer acting for Council, including the deletion of the "upper level of the rear unit", as well as making suggestions for modifications to the detail of the design, materials or colours, all of which seem to me to have been generally incorporated into the Revised Plans which I have directed be substituted. Other comments attributed to Council's Traffic Engineer, and the Council Landscape officer were also noted, and that Mr O'Leary was to confirm such matters in writing.

50. I have assessed and considered the changes made between the original plans, and those now forming the basis for my decision, and am satisfied with the outcome as respecting and reflecting the context and surroundings of the review site. I remain unconvinced that the form, scale, bulk and mass of the proposed buildings will be out of scale or character with other buildings on abutting lots, or on others in the immediate vicinity or the wider neighbourhood. I do not concede or agree that the streetscape appearance of the buildings in the proposal will be detrimental to the streetscape, which already includes two storey dwellings much greater in size, influence and significance on the streetscape, and on their adjoining and opposite sites.

51. I am also conscious that most driveways I found on my inspection of the area, were similarly sited adjacent to one side boundary and they normally provided straight vehicular access to garages usually sited behind the dwelling, towards the rear of the lot. I accordingly reject the argument that the proposed driveway is inconsistent with the Neighbourhood Character, and in fact I my view, it will afford greater opportunity for landscaping against the common boundary than most existing driveways in the area. I also agree that the suggestions made in the February 2003 Council letter are useful improvements, especially the redesign of the rear dwelling to delete the upper floor, while providing northern light access to the main central living room. I found nothing in the Council Urban Character Study or statements about dominant, homogenous or consistent elements in Character Area G (which incidentally covers a massive area, displaying many quite significantly different characteristics in my opinion), which would support or justify rejection of the scheme of redevelopment.

52. I do not agree with the argument of Ms. Bowdern, "that the proposed front fence will detract from the openness of the visual character of much of the area" or that the open space areas for the front dwelling are inadequate_._ There will be in my view, adequate opportunities to appropriately plant and maintain the front garden area, and other areas around both dwellings, to make a positive contribution towards the green character of this area. Condition 12 in my order will enable the Responsible Authority to consider and approve a proposed Landscape Plan, and parts of Condition 1 will assist in requiring the applicant to provide extra details about colours, materials, and of building and landscaping elements. It will also be noted that I have modified parts (b) and (i) of draft condition 1 as supplied by Ms Bowdern for Bayside City Council, as they may be in conflict in the particular levels and existing physical circumstances of the subject site, (and the height of Unit B is no longer an issue).

53. Having regard to discussions at the hearing with all parties, about the Draft conditions tendered by Ms. Bowdern, I have generally adopted them with several minor terminology changes, and deletions where I considered it appropriate to reflect agreements or concessions made, and to refer to the amended, substituted plans in the preamble.

54. I have also incorporated in the purpose of the Permit to be issued, that it also is for a Variation to the wording of the existing Restrictive Covenant on the title to the land and included a condition requiring the development to be only in accordance with the Permit to be issued in this application and the plans which are to be endorsed pursuant to the conditions imposed.

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