1. The decision of the responsible authority in relation to permit application no. P347/2010 is set aside.
2. A permit is granted in relation to land at 43 Collins Street, St Albans. The permit will allow variation of the following Registered Restrictive Covenant contained in Instrument of Transfer No 1580030 as it relates to Certificate of Title Volume 08205 Folio 054 so that the clause "shall not erect or cause or permit to be erected on any or either of the said lots hereby transferred any building other than one dwelling house with usual outbuildings and such dwelling house shall be of the value of not less than Three hundred and fifty pounds" shall not apply to Lot 153 on LP011231 subject to the condition set out in Appendix 1 to these reasons.

Mr Andrew Gray, Planning Consultant of ARG Planning Group Pty Ltd

Ms Candy Chan, Planning Officer with Mr James Bruscella of council.

Application under Section 77 of the Planning and Environment Act 1987.

15.25m frontage by 40 metre depth and an area of 612.56m2.

Nguyen v Brimbank CC [2010] VCAT 1558; Northern Exposure v Darebin CC [2003] VCAT 1839; Beaumont v Bayside CC [2003] VCAT 1152; Attorney-General for NSW v Wentworth (1998) 14 NSW LR 481.

1. The permit applicant/applicant for review seeks the removal of a registered restrictive covenant over the subject land. The restrictive covenant reads:

The proprietor will not "..... erect or cause or permit to be erected on either of the said lots hereby transferred any building other than one dwelling house with usual outbuildings and such dwelling house shall be of the value of not less than Three Hundred and Fifty Pounds ....".

1. Pursuant to section 60(5) of the Planning and Environment Act 1987 a responsible authority or the Tribunal on review must not grant a planning permit which allows the removal or variation of a restriction unless it is satisfied that:
   1. The owner of any land benefited by the restriction will be unlikely to suffer any detriment of any kind (including perceived detriment) as a consequence of the removal or variation of the restriction; and
   2. If that owner has objected to the grant of a permit, the objection is vexatious or not made in good faith.
2. The Tribunal must decide whether the above tests are satisfied and a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the Planning and Environment Act 1987, s.60(5), I have decided to direct the grant of a permit for removal of the restrictive covenant. My reasons follow.

1. The site lies within 300 metres of the St Albans major activity centre and one block up from the Business 1 zone which ends at the intersection of Collins and Alfrieda Streets and McIvor Road.
2. The restrictive covenant was created in 1925 in a subdivision of the parent title Vol 5072 Folio 4263 which extends between Main Road St Albans to the south to Biggs Street to the north and between Alfrieda Street to the west to View Street to the east including the eastern half of View Street properties.
3. Of the original beneficiary objectors, Mr Chen lives immediately next door to the subject site on a corner lot that now houses three dwellings. Mrs Kalkbrenner lives 35 metres diagonally opposite the subject site.
4. The applicant tendered maps of this parent subdivision illustrating variation/removal of covenants from four lots with substantially more lots housing more than one dwelling per lot. There is no question that the purpose and intent of the restrictive covenant has been substantially eroded.
5. Out of the parent title Vol 5072 Folio 4263 that created the restrictive covenant in 1925, the following is a list of lots that have been altered from single dwellings per lot to medium density housing of generally two, some three and one four dwellings:

1. One hundred and twenty beneficiaries of the covenant were notified of the application to remove it from the subject land. Out of the one hundred and twenty beneficiaries, 119 did not object.
2. Although there were two beneficiaries who objected to council against its removal, one of them, Mr Zi Chen has notified the Tribunal in writing on 6 February 2011 that he withdraws his objection:

Due to misunderstanding the notice issued to either accept or object, I incorrectly objected to Zoran Bocvarovski's request for the removal of the covenant on his property at 43 Collins Street, St Albans. I, Zi Chem, of 43a Collins Street, St Albans, do not object to the removal of the covenant of 43 Collins Street, St Albans.

1. It is no wonder that Mr Chen withdrew his objection, since his dwelling is a double storey townhouse at 43a Collins Street, St Albans which has had its covenant varied or removed to allow more than one dwelling on the original block of land.
2. That leaves Ms Elizabeth Kalkbrenner of 38 Collins Street, St Albans who lives 35 metres diagonally opposite the subject site. Ms Kalkbrenner objected to council as follows:

I object to the removal of the covenant as it lowers the value of my property, creates havoc with parking. There are problems with noise.

1. However, although notified of this review against council's decision to refuse a permit for removal of the restrictive covenant, Ms Kalkbrenner did not serve a Statement of Grounds opposing this application for review and seeking to be joined as a party to support the Council. Neither did she attend this hearing.
2. Although a Ms Colangelo of 25 Collins Street also objected, she is not a beneficiary and has no standing under the s.60(5) tests.
3. The applicant submitted that Ms Kalkbrenner at 35 metres away will not hear noise from the subject land itself; at one block away from the St Albans major activity centre already experiences a higher level of traffic and parking generation as a result.
4. The applicant for review also pointed out that in Nguyen v Brimbank CC[2] Ms Kalkbrenner was the only objector but also did not serve a Statement of Grounds opposing that application for review. Nor did she seek to be joined as a party to support the Council's refusal, nor attend that hearing.
5. In Nguyen[3], Senior Member Rickards permitted removal of the covenant, noting:

Whilst I do not consider this leads me to the conclusion that this particular covenant is a 'dead wood' covenant it does suggest that overtime a marked erosion of the covenant has occurred.

1. Is Ms Kalkbrenner unlikely to suffer any detriment of any kind (including perceived detriment) as a consequence of the removal or variation of the restriction?
2. Is Ms Kalkbrenner's objection vexatious or not made in good faith?

1. Applying the principles in Northern Exposure v Darebin CC[4], pursuant to section 60(5)(a) I need to be satisfied that there will be no detriment of any kind, including perceived detriment, to Ms Kalkbrenner.
2. As for whether the hurdle posed by section 60(5)(b) is satisfied, that is addressed in Beaumont v Bayside CC[5] which puts the objection as "obviously untenable or manifestly groundless" to the point where it should be found to be vexatious in the sense of Roden J in Attorney-General for NSW v Wentworth[6], as also applied by Eames J in Attorney-General for Victoria v Kay[7]:
   1. Proceedings are vexatious 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 irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless .........

Analysis under s.60(5)(a) Planning and Environment Act 1987

1. The following factors persuade me that Ms Kalkbrenner is unlikely to suffer any detriment of any kind (including perceived detriment) as a consequence of the removal or variation of the restriction.
2. Firstly, as illustrated in the maps of the original subdivision, there is considerable erosion of the covenant in the neighbourhood as well as in Ms Kalkbrenner's immediate neighbourhood, with very many lots divided into more than one dwelling.
3. Secondly, given the proximity of the Kalkbrenner land to the edge of the major activity centre, together with its increased traffic and on-street parking generated, the neighbourhood has altered from a pristine quiet hinterland residential neighbourhood.
4. Thirdly, any replacement dwellings need planning permission and Ms Kalkbrenner will have the opportunity to contest any permit application and ensure her amenity is protected.

Analysis under s.60(5)(b) Planning and Environment Act 1987

1. Applying Attorney-General for NSW v Wentworth, the following factors persuade me that Ms Kalkbrenner's objection is vexatious or not made in good faith.
2. I do not think Ms Kalkbrenner objected with the intention of annoying or embarrassing the permit applicant. Nor do I think she objected for a collateral purpose.
3. But given the fact that she has not pursued her objection by lodging a statement of grounds contesting this application for review, nor has she supported council's refusal, nor has she attended this hearing together with the fact that Ms Kalkbrenner has exhibited exactly this same behaviour in the Nguyen v Brimbank CC[8] review, I find that her objection is so obviously untenable or manifestly groundless as to be utterly hopeless.
4. Following the decision in the Nguyen v Brimbank CC[9] review where she took no part, Ms Kalkbrenner needed to exhibit good faith by pursuing her opposition to VCAT and appearing to support council and her original objection.

1. For all the above reasons I set aside the decision of the Responsible Authority to refuse a permit to remove the restrictive covenant and I direct the issue of a permit for its variation as to 'one dwelling house'.

Variation of the following Registered Restrictive Covenant contained in Instrument of Transfer No 1580030 as it relates to Certificate of Title Volume 08205 Folio 054 so that the clause "shall not erect or cause or permit to be erected on any or either of the said lots hereby transferred any building other than one dwelling house with usual outbuildings and such dwelling house shall be of the value of not less than Three hundred and fifty pounds" shall not apply to Lot 153 on LP011231.

1. This permit will expire if the variation of the restriction is not registered at the Land Titles Office within two years of the date of this permit. The Responsible Authority may extend the period referred to if a request is made in writing before the permit expires or within three months afterwards.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] [2010] VCAT 1558 (21 September 2010)

[4] [2003] VCAT 1839 (9 December 2003)

[5] [2003] VCAT 1152 (2 September 2003)

[6] (1998) 14 NSW LR 481 at 491

[7] [1999] VSC 30 (3 February 1999)

[8] [2010] VCAT 1558