for review of a decision to refuse to grant a permit.

Lot 38 on Plan of Subdivision No. 7683 being the land in Certificate of Title Volume 8048 Folio 671.

Rectangle of land with a frontage of 30.48m to the western side of Bonnie View Road, a depth of 102.64m and an area of 3152m2.

Croydon Neighbourhood Residential Zone under the Maroondah Planning Scheme.

"1. That Council as the Responsible Authority is not satisfied that owners of land benefited by the covenant are unlikely to suffer any detriment of any kind, including any perceived detriment."

"1. The owners of land benefited by the covenant are unlikely to suffer any detriment of any kind, including any perceived detriment."

Mr Michael Diedun, Planning Officer of the City of Maroondah, appeared for the Responsible Authority. He presented written and oral submissions.

Mr John Cicero, Solicitor of the firm of Best Hooper, Solicitors, appeared for Carson Simpson Pty Ltd being the Applicant for Review/Permit Applicant. He presented written and oral submissions and called as a witness Mr Graham Leslie Biggs, Valuer. Mr Biggs presented a written report and gave oral evidence.

Ms M Kelly, a Respondent/Objector, appeared on her own behalf and for a number of other objectors being A R White, B M Jay, R & S Gmaz, Brenton Swincer, Helen Mollison, Valma Poppins, Barbara Lewis and Martin Zitzloff, although it was found that Brenton Swincer and Alison Barnard (an objector who had sent in a written submission) were not the owners of land benefiting from the covenant. Ms Kelly presented written and oral submissions.

Various plans, photographs and other documents were presented as attachments to written submissions or as separate items.

Towards the end of the hearing Mr Cicero sought and obtained leave to lodge a further written submission within 14 days of the close of the hearing on the basis that the Responsible Authority and Ms Kelly would have leave to submit answering written submissions within a further 14 days, all on the basis that each representative would be furnished with copies of each such post-hearing written submissions. Pursuant to this leave Mr Cicero duly lodged a further written submission and written replies were received from the Responsible Authority and Ms Kelly. There was some mix up about the provision of attachments to Mr Cicero's written submissions but written replies from the Responsible Authority and Ms Kelly were subsequently received.

The evidence tendered in documentary form and the written submissions have been retained on the file of the Tribunal.

1. This block of land is subject to a restrictive covenant endorsed on its title. The covenant restricts the number of dwellings that may be erected on it. Originally the covenant restricted the number of dwellings to one, but the covenant was subsequently amended by the Supreme Court to increase the maximum number of dwellings allowable from 1 to 4. The permit application giving rise to this application for review sought to increase the number from 4 to 11 although, at the beginning of the hearing, Mr Cicero sought and obtained by consent an amendment to the application so that it sought a maximum of 10 rather than 11 dwellings.

2. The restrictive covenant, and the application for its variation, is subject to s.60(5) PE Act. This is a difficult sub-section which has given rise to some controversy. I considered it with some care in my decision of Wilde v City of Moonee Valley, McKay & Ors [1997] 18 AATR 145. In my reasons in that case I discussed the earlier cases of Denis Marsden Subdivisional Services Pty Ltd v City of Heidelberg [1993] 13 AATR 7 and the unreported decision of Frenchville Pty Ltd v City of Boroondara & Ors (Appeal No. 1994/38516). In the subsequent case of Grisby & Anor v City of Greater Geelong, Crosbie & Ors my colleague Mr M F McNamara, then Deputy President of the Administrative Appeals Tribunal, sitting with Mr W R Gould, Member, took a different view on some points in relation to s.60(5). This led to a division of the Tribunal being specially constituted with a view to clarifying, so far as the Tribunal was able, the situation in relation to this sub-section. The questions arose in Carabott & Ors v City of Hume & Scuderi, unreported appeals 1997/77561 and 1997/90731. In that case Mr McNamara and I sat with His Honour Judge T Wood, then President of the Administrative Appeals Tribunal and now Vice President of this Tribunal, and Ms Jennifer Moles, Member. It may be noted that there were two appeals in relation to that proposal which were heard together and determinations and reasons were given in a single document. The reasons dealing with s.60(5) relate to the second of those appeals and commenced at paragraph 35 on page 14 of the document containing the determinations and reasons.

"(5) The responsible authority must not grant a permit which allows the removal or variation of a restriction referred to in sub-section (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 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."

4. I think it is true to say that the main controversy dealt with in Carabott was the disagreement in Grisby with the approach taken in Wilde as to the correct interpretation and application of the "first leg" of s.60(5), that is to say the provision appearing in s.60(5)(a). This centred around the question of the Responsible Authority being satisfied that the owner of land benefited by the restriction "will be unlikely to suffer any detriment of any kind (including any perceived detriment) as a consequence of the ... variation of the restriction".

5. Mr Cicero, in these present proceedings, presented his client's case in relation to s.60(5)(a). He did so on the assumption that if he could persuade me that the owners of land benefiting by the covenant were unlikely to suffer any detriment of any kind (including any perceived detriment), then he would not have to worry about s.60(5)(b) and that I would be able to grant a variation of the covenant to allow 10 dwelling units notwithstanding the existence of s.50(5)(b).

6. It is relevant in this connection to note that he, in the course of presenting his case, specifically admitted that the objections of owners of land benefited by the covenant were not vexatious and were made in good faith.

7. In the course of the hearing I challenged Mr Cicero as to whether his assumption was correct and questioned whether paragraph (b) of

sub-section (5) did not present a problem to his client, especially in view of the above admission, even if I could be satisfied in relation to paragraph (a). In this connection I reminded him that in Wilde I had taken the view that, where applicable, satisfaction had to be achieved in relation to both (a) and (b). I note that the discussion of the second leg of sub-section (5), the paragraph (b) leg, commences near the top of page 161 of the report of Wilde. I had, by that stage in my reasons, satisfied myself in relation to paragraph (a). I did not take the view that being satisfied as to that was enough, but went on at page 161 and thereafter to consider paragraph (b). I do not think it is correct to describe that discussion as mere commentary by the way or that what I said there was unnecessary to my determination of that case. Rather I found that I did have to be satisfied as to paragraph (b). For reasons discussed on pages 161 and 162 I came to the conclusion that there was no owner of benefiting land who was an objector in that case. Paragraph (b) did not present a problem in that case for that reason.

8. The part of what I had to say that could be regarded as commentary by the way is the discussion commencing at the second last paragraph on page 162 where I considered whether certain objections made in that case was vexatious or not made in good faith. In fact I expressed the view, near the top of page 164, that certain objections in that case were vexatious within the meaning of s.60(5)(b).

9. My having raised these matters caused Mr Cicero some concern and led him to seek leave (which was granted) to submit a further written submission in support of his argument that lack of satisfaction under s.60(5)(b) would not constitute a bar to the grant of a permit if I was satisfied in relation to s.60(5)(a). He did lodge a further written submission pursuant to that leave, and written replies thereto were lodged by the Responsible Authority and Ms Kelly. Each of these post-hearing documents has been considered.

10. It has been said that sub-section (5) raises a partial bar against the granting of a permit for the variation of a restrictive covenant. It has been further said, in Wilde, Grisby & Carabott that, although the bar is not a complete bar, it is a very high one sufficient to prevent the granting of a permit in very many situations, probably most situations in which variation is sought. The initial disagreement between Grisby and Wilde was not that the bar was very high, but rather just how high the very high bar is. In each of those cases there was recognition of the difficulties involved in interpreting sub-section (5) and specifically paragraph (a) of sub-section (5). In each of the cases there was consideration of the purpose of the provision with a view to that being utilised in relation to its interpretation. This involved consideration, not just of the wording of the provision, but its situation in the context of s.60 and the Act as a whole. There was also reference in the reasons given in those cases to the ministerial second reading speech to see what light that might give to illuminate the intended purpose of the provision. I refer, of course, to the second reading speech when the amendment inserting sub-section (5) was before Parliament. It was found in those cases that both the effect and the intention of the provision was to eliminate the possibility of a planning permit being given for the removal or variation of a restrictive covenant in most situations where such a permit was likely to be sought. That view is common to the three cases. The discrepancy between Grisby and Wilde was about finer points as to the meaning of the phrase "any detriment of any kind" and as to the impact, if any, on it of the expression "(including any perceived detriment)".

11. In view of the position taken by Mr Cicero at the hearing, and enlarged upon by his post-hearing written submission, I come again to look at the wording and effect of sub-section (5). On reading it again I note that its structure is such that it does not in form impose a partial bar, the height of which has to be ascertained; rather it commences by imposing a complete bar to the granting of a permit but then goes on to admit an exception pursuant to which a permit can be granted. All permits to which the sub-section applies are prohibited unless they can come within the exception.

12. The exception is satisfied where the Responsible Authority (and this Tribunal on application for review) is satisfied in relation to paragraphs (a) and (b) of sub-section 5.

13. I think it is important to note that the conjunction between (a) and (b) is "and", not "or". In my opinion, as expressed in Wilde, this means that (a) and (b) are cumulative in the sense that the Responsible Authority must be satisfied in relation to each of them where they apply.

14. There can, of course, be circumstances where one or other of (a) or (b) do not apply in a particular case. For example, in relation to (a), if there was only one piece of land benefited by the restrictive covenant, and the owner of that land consented in writing to the grant of a permit within the terms of the first bracketed words in paragraph (a) so that exception within the exception was satisfied, then paragraph (a) would not apply so that the Responsible Authority would no longer have to be satisfied that the owner of land benefited was unlikely to suffer any detriment of any kind.

15. On the other hand, paragraph (b) would not be relevant if there was no objection lodged to the application of the permit, or if the only objections lodged were lodged by people who were not owners of land benefited by the restrictive covenant.

16. So far as paragraph (a) is concerned, consideration must be given to all owners of land benefited by the covenant, whether those owners have objected or not, unless there has been written consent within the terms of the first set of brackets. If Albert Bloggs owns land benefited by the covenant has not objected, the Responsible Authority must still consider whether it is satisfied that Bloggs is unlikely to suffer any detriment of any kind. If it cannot be so satisfied, then it is barred from granting a permit although Bloggs did not object. The Responsible Authority must consider under paragraph (a) whether it is satisfied that each owner of land benefited, whether an objector or not (save for the written consenters) will be unlikely to suffer any detriment of any kind. If it cannot be so satisfied in relation to any such owner it is barred from granting a permit.

17. If it is so satisfied, in relation to each such owner, it does not follow that it can then simply proceed to grant a permit, if it sees fit. It must then move to a consideration of paragraph (b). If that was not so, then paragraph (b) would be surplusage, unnecessary and of no effect. I think it is obvious that paragraph (b) is not intended to be surplusage. I am sure it is intended to be effective and to create a legal position that is different to that which would have been achieved if the balance of sub-section (5) had been enacted without it. Not only is it intended to have effect, I am convinced that it does have effect and that any interpretation that does not give it effect is a mistaken one. There is a strong presumption in statutory interpretation against an interpretation that renders part of the legislation redundant. Sometimes a court or Tribunal is forced to a conclusion that some word or words are surplusage, but not where there is a sensible alternative. By sensible I here mean comprehensible rather than necessarily wise. Here the effect of paragraph (b) might be said to be rather surprising, as I observed in the third paragraph on page 161 in Wilde. It may prevent the grant of a permit even though the Responsible Authority is satisfied that the grant of such a permit is unlikely to cause any owner of any land benefited by the restriction to suffer any detriment of any kind.

18. Paragraph (a) will bar a permit unless the Responsible Authority is satisfied that the owner is unlikely to suffer any detriment of any kind. "Unlikely" is not an absolute. Obviously the Responsible Authority cannot grant a permit if it thinks detriment is likely but may grant one where it thinks detriment is unlikely. However, paragraph (b) takes the situation to the absolute where the owner of land benefited by the covenant has in fact lodged a valid objection to the grant of a permit. If no such owner has lodged an objection, then paragraph (b) doesn't apply at all. If the Responsible Authority is satisfied that one such owner has lodged a valid objection, then unless such objection is vexatious or not made in good faith, a permit cannot be granted. Where it is satisfied of the existence of such an objection it is no longer a question, as under paragraph (a), of whether detriment is unlikely. The objecting owner is protected against all possibility of detriment including detriments that the Responsible Authority considers to be unlikely, or even quite improbable. I think that the Responsible Authority or Tribunal being satisfied that the owner of benefited land has objected removes the possibility of a permit to vary a restrictive covenant, unless such objection is vexatious or not made in good faith. As Mr Cicero concedes that neither of those defects apply to the objections of the owners of benefited land who have objected in this case, he is caught with the bar of paragraph (b) so that no permit can be granted. That, in my view, is the situation even if I was satisfied under paragraph (a) that all owners of land benefited by the restriction were unlikely to suffer any detriment of any kind.

19. That is my conclusion in relation to this case and my reasons for that conclusion are the analysis of sub-section (5) set out above. I have taken the approach, so far, of explaining my analysis as clearly as I can, rather than dealing with Mr Cicero's arguments. I must confess to a little diffidence about being categorical as to what Mr Cicero has said in his post-hearing written submission. I mean no disrespect to Mr Cicero when I say that I have found some passages in that document sufficiently difficult to follow that I am not sure that I have grasped everything that he has meant to convey. He has nevertheless not caused me to have doubts about what I have said in relation to paragraph (b) in these reasons or, indeed, what I said on that subject in Wilde. I do not intend, by saying this, to be patronising or disrespectful to Mr Cicero as I well know that he is an experienced and capable planning advocate. I suspect that the difficulties that I have had in understanding him, and perhaps the difficulties he has had in expressing himself in this instance, may arise from the difficulty of the point that he has undertaken to argue.

20. Subject to this qualification of not being completely certain that I have grasped all that he has intended to convey, I think it is true to say that the interpretation of sub-section (5) as a whole that he contends for is one that would mean that paragraph (b) is indeed surplusage. I understand him to argue that his client can succeed in obtaining a permit merely by satisfying me under paragraph (a) that any detriment of any kind is unlikely in spite of it being admitted that benefited owners have objected and that such objections do not suffer from the defects of vexatiousness or lack of good faith. If that is correct, what is the purpose of paragraph (b)? It is not redundant if he can succeed on satisfying me as to (a) alone? Lack of satisfaction under (a) will be a bar without reference to (b). I think the converse is also true. I think that is the effect of "and" between the two paragraphs. I think the sub-section makes perfectly good sense reading "and" as "and", and I see no occasion here for reading it as "or".

21. At 2.9 of his post-hearing submission Mr Cicero says:-

"If the interpretation were otherwise it could lead to the following situation. Let us assume that a Responsible Authority finds that;

(a) an owner who has the benefit of a restriction and who has objected to the grant of the permit has objected so that the objection is either vexatious or not made in good faith but;

(b) it cannot be satisfied as to the enquiry under Section 60(5)(a),

it would be an untenable position if because the objection under Section 60(5)(b) was vexatious or not made in good faith the restriction could be removed or varied."

22. I am not quite sure what this means. I do not see that a proper interpretation leads to this "untenable" position. If the Responsible Authority is not satisfied under s.60(5)(a) it cannot grant a permit and that is that. If an owner of land benefiting has lodged an objection that is vexatious or not made in good faith, the Responsible Authority still can't grant a permit for the original reason namely that it is not satisfied under paragraph (a). The finding of vexatiousness or lack of good faith in relation to the objection merely means that paragraph (b) does not, in that case, constitute a second and equally effective reason why no permit can be granted. If the objection had been made in good faith and had not been vexatious, then the Responsible Authority could not have granted a permit for two reasons; firstly because it was not satisfied under (a) and secondly because it was not satisfied under (b).

23. I don't know whether I have myself created any confusion by using the word "cumulative" as opposed to alternative. However, I think what the Responsible Authority must be satisfied of is cumulative in the sense that it must be satisfied of (a) and, where applicable, (b); but this might be seen as alternative inasmuch as, where both are applicable, lack of satisfaction of either one or both of (a) and (b) invokes the bar against granting a permit.

24. At 2.16 of his post-hearing submission Mr Cicero said:-

"It would be extremely difficult if not impossible to show that a person who had the benefit of the covenant has lodged an objection which is either vexatious or not made in good faith."

25. It will certainly often be impossible to show this, in the circumstances of particular cases. That is merely a reflection of the policy of sub-section (5), as well as its effect, that it is only intended to allow a permit in very restricted circumstances. However, it is not impossible to imagine circumstances in which a person with the benefit of the covenant lodges an objection that is vexatious or not in good faith. It may not be common, but I found such circumstances in the Wilde case.

26. In 2.18 and 2.19 of the same document Mr Cicero says that he finds it difficult to contemplate circumstances where the owner of benefiting land could be said to have lodged an application that was vexatious or not honest or free from ulterior motives. I think this merely reflects a lack of imagination on Mr Cicero's part.

27. At 2.22 Mr Cicero says that it does not appear that I argued the matter of the meaning to be given to s.60(5)(a) and (b) "in any great detail" in Wilde. I am a little disappointed that he found this to be the case, and can only hope that he finds my reasons in this case as to have been argued in sufficient detail.

28. He then went on to quote the following passage from page 161 of the report in that case as being the relevant passage:-

"If an owner of benefiting land objected, then the bar on granting a permit applies unless the Responsible Authority, or this Tribunal on appeal, is satisfied that the objection is vexatious or not made in good faith. I think that the conjunction "and" between (a) and (b) in sub-section 5 means that (b) is cumulative on (a). This has a result that might be thought surprising. It means that even if the Tribunal is satisfied that the owner of benefiting land is unlikely to suffer any detriment of any kind, then the bar still applies unless the Tribunal is also satisfied that such objection was vexatious or not made in good faith. One might of thought that being satisfied under s.60(5)(a) would be sufficient to determine that the objection was without merit and yet is to prevail against the application for a meritorious proposal. However, that it what Parliament has chosen to enact."

29. I suppose I have the advantage of knowing what I meant by this passage. It still seems to me to say what I meant and, in spite of Mr Cicero's arguments, I am still happy with it save for the faint misgiving I have expressed in relation to the use of the word "cumulative".

30. I find that the grant of a permit is barred, in the circumstances of this case, by s.60(5)(b). Accordingly the application for review will be dismissed and no permit is granted.