Save that this restrictive covenant does not prevent the construction of four dwellings in accordance with the planning permit granted by the Victorian Civil and Administrative Tribunal in its determination of planning review P2868/2009 and the endorsed plans approved there under.

1. Before the development starts the restriction in Instrument of Transfer of Land No AG596401E relating to Lot 1000 on Land of Subdivision 512748L and noted on Certificate of Title Volume 10762 Folio 891 must be varied in accordance with this permit and such variation is to be registered on the Register of Titles.
2. Before development starts modified plans must be submitted to and approved by the responsible authority. The plans are to be drawn to scale with dimensions and three copies are to be provided. When approved the plans will be endorsed and will thereafter be the endorsed plans in relation to this permit. The plans are to be generally in accordance with the plans submitted with the application but modified to include a detailed landscape plan prepared by a suitably qualified person showing:
   • (i) location of plantings,
   • (ii) mature size of plants,
   • (iii) pot size of plants,
   • (iv) quantity of each species,
   • (v) irrigation system to be used,
   • (vi) surface detail including surface cover whether concrete, grass, mulch or otherwise,
   • (vii) mulching details,
   • (viii) borders between lawns and garden beds, and
   • (ix) soil preparation and modification works.
3. This permit will expire if the variation of the covenant is not registered with the Registrar of Titles within twelve (12) months of the date of this permit.
4. The layout of the site and the size of the buildings and works as shown on the endorsed plan must not be altered or modified without the written consent of the responsible authority.
5. Prior to the occupation of the proposed dwellings, landscaping works as described on the endorsed plans must be provided and completed to the satisfaction of the responsible authority and such works must continue thereafter to be maintained to the satisfaction of the responsible authority.
6. The following must be carried out to the satisfaction of the responsible authority prior to the issue of the certificate of occupancy:
   • (a) before the development starts, drainage plans and design calculations for the proposed development must be submitted to and approved by the responsible authority;
   • (b) all on-site storm water must be collected from the hard surface areas, must not be allowed to flow uncontrolled into adjoining properties and the on-site drainage system must prevent discharge from each driveway onto the footpath;
   • (c) the maximum storm water discharge rate from the proposed development is not to exceed 8.32 litres per second and in the event that this discharge is exceeded, an on-site stormwater detention system must be installed in accordance with plans and specifications to be submitted to and approved by the responsible authority. (Note that relevant on-site detention design parameters should be sought from Council's engineering department);
   • (d) any proposed vehicle crossing must be constructed to the satisfaction of the responsible authority in accordance with council's Standard Drawings (Note: a permit must be obtained from council prior to construction);
   • (e) stormwater must not be discharged from the site other than by means of an underground pipe drain discharging to a legal point of discharge to the satisfaction of the responsible authority;
   • (f) before the issue of a statement of compliance, a compliance certificate from a qualified plumber must be submitted to council's engineering department verifying the installation of the storm water detention system in accordance with the approved drainage plans; and
   • (g) all existing works affected by the development works must be reinstated at no cost to and to the satisfaction of the responsible authority.
7. Construction activity must be managed so that the amenity of the area is not detrimentally affected, through the:
   • (a) transport of materials, goods or commodities to or from the land;
   • (b) inappropriate storage of any works or construction materials;
   • (c) hours of construction activity;
   • (d) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste and storm water run off, waste products, grit or oil, or mud and debris on adjoining roads; and
   • (e) presence of vermin.
8. Where external lighting is provided it must be fitted with suitable baffles to the satisfaction of the responsible authority and located to the satisfaction of the responsible authority so as to prevent the emission of direct light onto adjoining properties or roadways.
9. This permit will expire if one of the following circumstances applies:
   • The development is not started within two years of the date of this permit.
   • The development is not completed within four years from the date of this permit

1. The responsible authority is directed pursuant to Section 85 (1) (b) (ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order A above.

Mr Keith Altmann, town planner, appeared for the applicants. He presented written and oral submissions

Mr Joseph Oyelowo, town planner, of the Shire of Melton. He presented written and oral submission.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the tribunal.

Application under s 77 of the Planning and Environment Act 1987 for review of a decision of the responsible authority to refuse to grant a permit.

Construction of four dwellings and the removal of a restrictive covenant restricting development to one dwelling.

Residential 1 Zone under the Melton Planning Scheme

Lot 1000 on Plan of Subdivision 512748L being the land in Certificate of Title Volume 10762 Folio 891

Irregular but approximately rectangular area of land on the northeast corner of the intersection of Glencoe Street with Archer Drive with a frontage of 31.94 metres to the north side of Glencoe Street and of 32 metres to the east side of Archer Drive (excluding a splay of 4.25 metres between those frontages) and an area of 1371m2.

1. The proposal fails to satisfy the decision guidelines under Clause 65 of the Melton Planning Scheme, particularly in relation to Section 60 of the Planning and Environment Act 1987.
2. The proposal does not satisfy the tests for the removal of a restriction as set out at Section 60(2) and Section 60(5) of the Planning and Environment Act 1987

1. The proposed application is inconsistent with the neighbourhood character; there is many adjoining similar dwellings adjacent to the proposed development.
2. The proposed application respects the current existing streetscape. All four dwellings will be given different façade styles and colours to maintain individuality.

1. This case concerns a project of the applicants to construct 4 three bedroom dwellings on the review site. To achieve that proposal planning permission is required for the development involving more than one dwelling on the allotment. It also requires planning permission for the removal or modification of a single dwelling restrictive covenant that applies to the land.
2. The responsible authority approves of the proposed development.
3. This is an unusually large allotment, nearly four times the size of the adjoining allotments facing the north side of Glencoe Street. The responsible authority is of the view that the proposed development accords very well with relevant planning considerations, including the so called "Rescode" provisions in cl 55 of the Melton Planning Scheme. The concern of the responsible authority does not relate to the planning merits, and if that was the only permission required was for the four dwellings, it would grant it.
4. The concern of the responsible authority relates to the second planning permission required, namely permission to remove or modify the restrictive covenant.
5. Notice was given of the permit application which sought these two permissions. One objection relevant to the restrictive covenant case was received from an owner of land with the benefit of the covenant. This was Ashley Breeden at 33 Archer Drive. That property and dwelling is on the opposite side of Archer Drive and some moderate distance away. Mr Breeden is not a party to the current case. Although he objected, he did not lodge a statement of grounds when given notice of the review. He did not appear at the hearing, not being a party, although I was told by those who did appear that he was aware of the hearing. I was also informed that he had not inspected the plans and application. Whether that is correct or not, it is certainly consistent with his objection which appears to have been prepared without any proper attention to what is actually proposed in the permit application.
6. In these circumstances, the hearing before me concentrated on the question of the restrictive covenant, there being no dispute about the grant of the development permissions being sought.
7. At the end of the hearing, I gave my determination orally with oral reasons. I rely on those reasons and will content myself here with a summary.
8. The relevant certificate of title is found in transfer of land AG596401E. The restrictive covenant contains three paragraphs, but it is the first of these that is relevant for present purposes. In fact, that first paragraph contains four subparagraphs and it is only the first two subparagraphs that are relevant. I will set them out. The covenant is that the purchaser under the transfer of land and its successors promise not:
   1. Until after the 28th of February 2013:
      • (a) build construct or erect or cause to be built constructed or erected or remain on the Land or any part thereof more than one dwelling house.
      • (b) build construct or erect or cause to be built, constructed or erected or remain on the Land or any part thereof any house unless:-
        • (i) such dwelling house has a minimum floor area of 110 square metres (excluding verandah/garage or carport) for lot sizes less than 750 square metres and a minimum floor area of 158 square metres (excluding verandah/garage or carport) for lot sizes 750 square metres and greater;
        • (ii) not less than 75% of the external walls (excluding windows) of such dwelling house shall be constructed of brick, brick veneer, stone, rendered masonry block or other like texture coated material and of which the roof shall be made of corrugated colorbond, terracotta tiles, cement tiles, slate tiles or other non-reflective material only.
9. The first thing to be ascertained is as to whether this restrictive covenant was created before or after 25 June 1991. That date is important because it determines which restrictions in s 60 of the Planning and Environment Act 1987 (PE Act) will apply to the determination of this restrictive covenant case.
10. If the restrictive covenant was created before 25 June 1991, then the highly restrictive provisions of subs (5) of s 60 apply. That section imposes a bar upon the responsible authority granting a permit for the removal or modification of a restrictive covenant unless it is satisfied in relation to several stringent requirements.
11. If the covenant was created after 25 June 1991, then the much less severe requirements of s 60(2) apply.
12. The transfer of land in which the restrictive covenant appears deals with an allotment that was created by plan of subdivision 512748L. As that plan of subdivision was not registered until 2002, I accept that the transfer of land, and its covenant, would have been created after that date, and thus well after 25 June 1991. Accordingly, it is the provisions of subs (2) of s 60 that apply, and not those of subs (5).
13. This is no doubt pleasing to the applicants because they would have a good deal more difficulty in establishing their case under subs (5). In fact, the circumstance of an owner of land with the benefit of the covenant having objected might well have been fatal to their proceeding, even though that objector did not lodge a statement of grounds, appear at the hearing or pursue the objection before this tribunal.
14. It is apparent from the grounds of refusal relied upon by the responsible authority, and from the officers' report in relation to the application, that the responsible authority has made a mistake as to what parts of s 60 are in fact applicable. It has referred to and apparently relied upon subs (5) as well as subs (2). It has consequently asked itself the wrong questions and applied wrong tests. It is only subs (2) that is relevant and applicable in the current case. This mistake detracts from the weight that might otherwise be attributed to the refusal of the responsible authority. However, the responsible authority only refused the applicable because it considered that technical and legal requirements under s 60 were not or might not have been satisfied; otherwise it was happy for a permit to be granted.
15. Section 60 (2) provides that the responsible authority (and this tribunal on review) must not grant a permit to allow a removal or variation of a restrictive covenant unless it is satisfied that the owner of any land benefited by the restrictive covenant will be unlikely[1] to suffer -

(c) loss arising from change to the character of the neighbourhood; or

As a consequence of the removal or variation of the restrictive covenant.

1. I note that the requirement is only that the tribunal considers such loss or detriment to be "unlikely". It is not a test of being satisfied that such loss or detriment is a mere possibility.
2. I have given oral reasons as to why I consider it unlikely that any of these losses or detriments would occur. Removal of the restrictive covenant, at any rate to allow the proposed four unit development, would not change the character of the neighbourhood and thus would not occasion any loss arising from changing the character of the neighbourhood. The neighbourhood is now a residential one in a residential zone. It is an emerging or developing residential neighbourhood with some of the allotments yet to be developed. It is a situation where there are some large lots, some that might be described as medium sized and some smaller lots. The review site is over 1300m2 and must regarded as a large one. It adjoins a row of residential lots along the north side of Glencoe Street, which are not much more than a quarter its size. Bearing in mind economies of space that can be derived by an integrated development of four units on one block, as opposed to four units on four separate blocks, this proposal can be seen as quite in accordance with this adjoining part of the neighbourhood.
3. Furthermore, I am satisfied that loss by detriment to the amenity is unlikely. This subdivision in this locality is a modern one with new and modern roads built to modern standards. The proposal is that each three bedroom dwelling should have two off street car spaces, quite apart from the opportunity that might exist for onstreet parking by visitors. I think that the notions of traffic congestion, parking congestion and even traffic hazards suggested in the written objection of Mr Breeden, can only have been conceived by somebody who has not properly considered the plans. There is no basis for any of these apprehensions. The proposal indicates suitable off street parking in accordance with standard requirements with adequate streets and no basis for suggesting that there would be any unusual traffic hazard. From a traffic point of view the difference between one dwelling and four on this block would be imperceptible having regard to the modesty of the increase of traffic compared with the traffic carrying capacity of the road network.
4. Mr Breeden also speculates about what he is pleased to describe as "dense developments". The proposed development is not unduly dense, and is comparable with the adjoining properties in Glencoe Street.
5. I find no substance or basis in the objection of Mr Breeden for supposing that there would be loss to him or any other benefiting owner due to loss of amenity. That is so in relation to density, traffic and parking. I can see no other reason for supposing that there would be detriment to the amenity of the area.
6. The first criteria in subs (2) concerns financial loss. It is unlikely that there would be any financial loss unless there was loss of amenity or loss due to the change in the character of the neighbourhood. Financial loss is not normally a planning consideration. Section 60(2) makes it relevant in relation to the removal or modification of a restrictive covenant. Such a removal or modification is really more in the nature of an adjustment to private property rights than a public planning matter. In any event, I consider that loss due to financial loss is unlikely.
7. The other category is "other material detriment". I am not aware of any other material detriment likely to be relevant, and none has been suggested to me. I think that loss on that account is also unlikely.
8. Accordingly, I am satisfied that s 60 (2) does not constitute a bar to the granting of the permission sought for the removal or modification of the covenant.
9. The change sought to the covenant is really a modification, notwithstanding that it is expressed as removal of a section of the covenant. I think it prudent to frame the permission in a way that allows the proposed development, rather than to allow complete removal of the contested subparagraphs of the first paragraph of the restrictive covenant.
10. Accordingly, for the reasons given orally in the course of the hearing (and outlined above) I have come to the conclusion that the refusal to grant a permit determined upon by the responsible authority should be set aside and that permission should be granted for the development and for sufficient modification to the restrictive covenant to allow that development.
11. I have made some modifications to the draft of suggested permit conditions that was submitted.