2. The first ground for the dismissal of the application is as a consequence of the Applicants non appearance at the hearing. The power is exercised under Sections 76 and 78 of the Victorian Civil and Administrative Tribunal Act 1998 for want of prosecution under Section 76 as a consequence of the Applicant not appearing at hearing the proceeding and under Section 78 for conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as failing to attend the hearing of the proceeding.

3. The decision of the Responsible Authority is also affirmed and the direction that no permit issue as the proposal is contrary to the provisions of the Section 173 Agreement for stage 20 of the Copperfields Residential Estate.

4. The Section 173 Agreement was registered on the Applicant's Certificate of Title for the land on 29 January 2003 in dealing No AB839983V.

5. The agreement was entered into on 29 July 1998 between Brimbank City Council and Urban Land Corporation in respect of a number of allotments on Plan of Subdivision No 410074J including the subject land.

6. Clause 2.1.1 contains an agreement between the parties that:

"Not more than 1 dwelling, together with usual outbuildings will be erected on any lot created by the subdivision of the said land."

7. Clause 3.1 provides that the covenant shall run with the land and "shall bind the Urban Land Corporation, its successors, assigns and transferees, and the registered proprietor for the time being of the whole or any part of the land."

8. The Applicant for Review is the registered proprietor of the land.

9. As the proposal is for the construction of 2 two storey dwellings the proposal is prohibited by the Section 173 Agreement. While Section 173 Agreements cannot be regarded as a restrictive covenant, Section 84B(1)(g) PE Act requires that:

_"_In determining an application for review under this Act, the Tribunal -

(g) must (where appropriate) have regard to any agreement made pursuant to Section 173 affecting the land the subject of the application for review."

10. The Tribunal has in a number of decisions held that neither a Responsible Authority nor the Tribunal should direct the issue of a permit where it is contrary to a Section 173 Agreement affecting the subject land and to do so disregarding the Section 173 Agreement is a material mistake of law. See Clapperton v Kingston CC [1999] VCAT 684, Salerno v Maribyrnong CC [2001] VCAT 262, Stonnington CC v Reiter [2002] VCAT 997.

11. Also it is noted that under Section 126 PE Act the use or development of land contrary to an agreement under Section 173 is an offence under the Act and the Responsible Authority and any other person would be entitled to bring enforcement proceedings under Section 114 PE Act in respect of such a breach.

12. In these circumstances the Tribunal should not direct the issue of a permit in this matter.

13. It is not necessary to consider the objector's concerns or other planning considerations affecting the proposed development.