Two rectangular allotments each with a frontage of 15.85 metres (combined 31.70 metres) to the western side of Wembley Avenue and each having a depth of 42.67 metres and an area of 676.31 square metres (the combined area amounting to 1352.62 square metres).

[2004] VCAT 864

A. Application for review P3463/2003 is granted and a permit is granted for two double storey dwellings on the land (in addition to an existing dwelling) and also for a variation of the restrictive covenant affecting each of the allotments and recorded as an encumbrance on the relevant Certificates of Title to permit the development allowed by this permit, in accordance with the endorsed plans hereafter provided for and subject to the following conditions.

1. Before the development starts, amended 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 as evidence of their approval. The plans are to be in accordance with the plans submitted as "Revised Plans" dated 25 July 2003 submitted to the Responsible Authority but modified to show -

a) The floor type to be constructed and finished floor levels to AHD confirming that no part of the finished ground floor levels exceeds 500 mm above natural ground measured directly below.

b) All wall heights above ground level to be nominated on the plans.

c) All paving (except driveways) to be permeable with details of the permeability of the paving to be recorded in notations.

d) A schedule of all external materials and finishes to be provided to the satisfaction of the Responsible Authority such schedule to show the materials, colour (including two colour samples) and finish of all external walls, roof, fascias, window frames and paving (including car park surfacing).

e) The proposed landscape treatment for the site including the existing and proposed species.

f) All plant and equipment (including air conditioning units, heating units and hotwater systems) proposed to be located externally must be identified on the plans and away from bedrooms of adjoining properties.

g) The proposed new crossing for Dwelling 1 to be 3.0 metres wide and centred on the garage door opening with the driveway tapered to match the crossing width.

h) The existing crossing for Dwelling 3 to be 3.0 metres wide and centred on the garage with a minimum 2.2 metre wide separator to the adjoining crossing.

i) The garage to Dwelling 1 to be recessed by approximately 1 metre and the living area moved forward so that its setback from the frontage is less than for the garage.

j) The north facing window for Bedroom 3 of Dwelling 2 to incorporate a vertical screen to restrict views into the private open space area of the adjoining dwelling being part of the development.

k) The northern section of the private open space area for Dwelling 2 to be screened by a high front fence.

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

3. 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 which plan must show a drainage scheme to the satisfaction of the Responsible Authority for the collection of storm water within the site and for the conveying of the stormwater to Council's nominated point of discharge

4. 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.

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

* The development and use is/are not started within two (2) years of the date of this permit.

* The development is not completed within two (2) years of the date of the 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.

6. Street numbers contrasting in colour to the 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 identify of the property. Separate unit numbers must be placed adjacent to the front entrance of each dwelling, such numbers to be clearly legible from the access driveway.

7. All service pipes, fixtures and fittings except stormwater downpipes must be concealed on exposed elevations to the satisfaction of the Responsible Authority.

8. 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 to be the sole responsibility of the owner/developer.

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

10. Before the development starts, areas set aside for parked vehicles, access lanes and associated access ramps 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;

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

11. Before the development hereby permitted starts, three (3) 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 Protections Zones as required by the Responsible Authority.

i) Areas proposed to be lawn, pavement, garden beds, other landscape features;

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

iii) Coded identification for these groupings and the numbers proposed; and

iv) A Plant Schedule, which consists of an itemised list of all proposed species. The schedule must include the following headings:

* Plant code; (refers to codified botanical names used on plan, for example, Bm)

* Container size (for all other plant groups); and

e) Supporting notes on the plan that elaborate on specific requirements for the proposed landscaping (including site preparation, protection during construction of existing vegetation, use of a suitable mulching material and proposed depth).

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

When approved the plan will be endorsed as evidence of its approval.

12. Before the occupation, 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.

13. All existing vegetation shown on the endorsed plans to be retained must be suitably marked before any demolition of existing buildings commence or development starts on the site and that vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.

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

15. The landscaped areas shown on the endorsed plan and schedule must only be used as landscaped areas and are to be maintained in a proper tidy and healthy condition to the satisfaction of the Responsible Authority. Should any tree or shrub be removed or destroyed within 12 months of establishment then, except with the consent of the Responsible Authority, it is to be replaced by a tree or shrub of a similar size and species.

16. The Responsible Authority is to be advised of the completion of the landscaping so that a site inspection can be carried out. (Note: the Responsible Authority intends to conduct a further inspection six (6) months after completion of the landscaping to ensure that species have been adequately maintained.)

17. Prior to the issuing of a building permit for the development hereby permitted, a report must be submitted to the satisfaction of the Responsible Authority. This report must certify that the proposed development has been designed to achieve a four star energy rating, using the Sustainable Energy Authority of Victoria 'FirstRate' system or equivalent.

B. This application for review No. P660/2004 is granted and a permit is granted for the subdivision of the land into three allotments in accordance with the endorsed plans hereafter provided for and subject to the following conditions:

1. Before the subdivision begins plans must be tendered 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, such plans will be endorsed as evidence of their approval. The plans are to be in accordance with the plans tendered with the permit application.

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

3. Reticulated water, sewerage and electricity must be available to each lot shown on the endorsed plans to the satisfaction of the Responsible Authority. All basic services including water telephone, electricity, gas, sewerage and telephone must be installed underground and located to the satisfaction of the Responsible Authority.

4. Each lot shown on the endorsed plans must be drained to the satisfaction of the Responsible Authority or other relevant authority.

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

a) the subdivision is not started within two years of the date of this permit;

b) the subdivision is not completed within two (2) years of the date of starting.

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

6. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

7. Prior to the Plan of Subdivision being certified by the Responsible Authority, the applicant must enter into an agreement under Section 173 of the Planning and Environment Act with the Responsible Authority to the effect that the development of Lots 1, 2 and 3 indicated on the plan of subdivision must be in accordance with approved plans forming part of Planning Permit No. 2003/0198 or any amendment to the plans approved by the Responsible Authority. The agreement is to be prepared and executed at the owners cost.

8. The statement of Compliance must be lodged with the Titles Office within 5 years of the date of issue of this permit.

9. Prior to the issue of a Statement of Compliance, the owner must enter into and comply with an agreement with Melbourne Water Corporation, under Section 269A of the Melbourne and Metropolitan Board of Works Act 1958, for the provision of drainage works and the acceptance of surface and stormwater from the subject land directly or indirectly into Melbourne Water's drainage system.

10. The owner of the subject land must enter into an agreement with South East Water Limited for the provision of water supply and fulfil all requirements to its satisfaction.

11. The owner of the subject land must enter into an agreement with South East Water Limited for the provision of sewerage and fulfil all requirements to its satisfaction.

12. Prior to certification, the Plan of Subdivision must be referred to South East Water in accordance with Section 8 of the Subdivision Act 1988.

13. The Plan of Subdivision must be accompanied by a Body Corporate schedule. All lots shown on the Plan of Subdivision must be included in the Body Corporate schedule.

C. 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 Orders A and B above.

Ms. Jennifer Bowdern, Legal Support Planner of the City of Bayside, appeared for the Responsible Authority. She presented written and oral submissions.

Ms. Susan Brennan, Barrister, appeared on the instructions of the firm of Minter Ellison Lawyers for the Applicant company. She presented written and oral submissions and called two expert witnesses who have oral evidence and adopted, in each case, a written report. They were Ms. Gaye McKenzie, town planner, and Mr. Maxwell James Parsons, surveyor.

Mr. Stephen Mulcahy, Respondent/Objector, appeared for himself and for Helen Mulcahy. He also appeared for Caroline and Brett Laws. He presented written and oral submissions including a brief written submission on behalf of Caroline and Brett Laws.

Mr. David O'Sullivan, Respondent/Objector, appeared on behalf of himself and Lisa O'Sullivan. He also appeared for Lyle Nicholas and Calista Bruce. He presented written and oral submissions on behalf of himself and Lisa O'Sullivan, a brief letter from Lyle Nicholas and a written submission on behalf of Calista Bruce.

Mr. Norman Rose, Respondent/Objector, appeared in person on behalf of himself and for Christine Dougall. He made oral submissions.

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 (PE Act) for review of a decision of the Responsible Authority to refuse to grant a permit.

Application under s.79 PE Act for review of the failure of the Responsible Authority to grant a permit within the prescribed time.

Construction of two double storey dwellings beside and behind an existing house to remain on No. 7 Wembley Avenue and modification of a restrictive covenant.

Re-subdivision of the existing parcel of two allotments into three allotments to provide a separate lot and title for each of the proposed three houses.

Residential 1 Zone under the Bayside Planning Scheme.

Variation of the covenant would be contrary to Section 60(5) of the Planning and Environment Act 1987 as the Responsible authority is not satisfied that the proposal meets the requirements of Sections 60(5)(a) and (b) of that Act.

1. The variation of the covenant would not be contrary to Section 60(5) of the Planning and Environment Act 1987;

2. The proposal meets the requirements of Sections 60(5)(a) and (b) of that Act; and

3. The proposal is otherwise appropriate for the site having regard to applicable town planning controls.

The permit application giving rise to application for review P3463/2003 purports to be in the name "INFORM DESIGN & CONSTRUCTION". Presumably, that is not the name of a firm, but rather a careless statement of the name of the company Inform Design & Construction Pty Ltd. The application for review is in the name of the company.

The second permit application purports to be by "M.J. Parsons & Associates". Again, the application for review shows the company Inform Design & Construction Pty Ltd as the applicant.

There is a technical problem here as it is only the permit applicant that has standing under s.77 or 79 PE Act to apply for a review.

At the beginning of the hearing, Ms. Brennan, appearing on behalf of the applicants, sought to correct all this by applying for an amendment to substitute William Castles and Linda Maney as the applicants in relation to each of the permit applications and also each of the applications for review. Those two individuals are the owners of the land and the true applicants for whom the other entities acted as agents. It is appropriate that they should be the applicants.

1 These two applications for review in fact seek three planning permissions. The two allotments concerned, known as 5 and 7 Wembley Avenue, Cheltenham, constitute the parcel of land in relation to which each of these permissions is sought.

2 These allotments adjoin each other with the northern side boundary of No. 5 being common with southern side boundary of No. 7 Wembley Avenue. Each has a frontage to the west side of Wembley Avenue. Each allotment runs through to abut a laneway which is unnamed and which is (like Wembley Avenue) runs north to south. It passes the rear boundary of each of the properties concerned.

3 The width of this laneway is approximately 6 metres. The land constituting the lane was originally a drainage and sewerage reserve on the western margin on plan of subdivision No. 10580 consented to by the then Council on 13 October 1924, and a further strip of land marked "ROW" along the eastern margin of plan of subdivision LP10882 lodged 9 July 1925. The width of the reserve was 10ft so that, taken together with the adjoining ROW (or right of way) the total width should be 22ft. However, Mr. Parsons, who is a land surveyor and who have evidence on behalf of the applicants, has conducted a survey in which he determined that there is an overlap of 140mm. I know this is mixing imperial with metric measures, but the actual width of the land on the ground is thus 22ft less 140mm.

4 This is a substantial lane in terms of width. A formed and gravelled carriageway runs along it providing vehicle and pedestrian access to the rear of properties, including the review site, that front the western side of Wembley Avenue. Wembley Avenue runs north to south and the various allotments fronting its eastern and western sides are thus oriented east to west (including lots 40 and 41 constituting the review site). That is all part of what I will call a 1924 subdivision. The 1925 subdivision, located immediately to the west, is oriented differently. The access roads known as Correa Avenue and Erskine Avenue run east to west and the allotments fronting them front their northern or southern sides. The right of way thus runs past the eastern side boundaries of lots 60, 37, 36 and 13, being the eastern most lots fronting Park Road (the next east-west road to the south), Correa Avenue and Erskine Avenue. The right-of-way runs from Park Road to Erskine Avenue. Lot 12 on the 1925 subdivision is the eastern most lot fronting the north side of Erskine Avenue, but the right-of-way has always stopped at Erskine Avenue and never continued north along the eastern side of lot 12.

5 Originally, the drainage and sewerage reserve extended north from Park Road as far as Olympic Avenue which, at that location, runs east to west and is situated further north than Erskine Avenue. Thus, originally, the combined length of the reserve and the ROW, with a combined width of 22ft, ran from Park Road to Erskine Avenue whilst the reserve then continued north with a width of 10ft as far as Olympic Avenue. However, at some stage the length of the reserve between Erskine Avenue and Olympic Avenue has been closed and cancelled. Thus the laneway of just under 22ft runs from Park Road to Erskin Avenue, and thus past the rear of the review site. It is considerably wider than the formed carriageway within it so there are grassy verges on either side, and Mr. O'Sullivan has extended his rear garden into this laneway area with some plantings along his rear fence.

6 Correa Avenue, running in from the west, forms a "T" intersection with the laneway. It does so opposite the rear boundary of No. 5 Wembley Avenue. There is a bushy tree opposite the end of Correa Avenue between the formed carriageway and the rear fence of No. 5 Wembley Avenue.

7 The laneway provides rear access (for pedestrians and vehicles), as well as an opportunity for drainage, to the review site and neighbouring properties facing the west side of Wembley Avenue and having their rear boundaries along the lane. It also affords similar access to the eastern most allotments in the 1925 subdivision across their eastern side boundaries. Advantage has been taken of this opportunity in relation to some of the allotments concerned, and there are or have been double gates through the rear fences of both allotments constituting the review site. For those properties facing the west side of Wembley Avenue that do not have such rear or side boundary fences, the opportunity remains open to them.

8 I notice that the original drainage and sewerage reserve was 10ft wide. We normally think of sewerage as a reticulated pipe system for carrying away waste waters including sullage and night soil from water closet lavatories. Although it is very unlikely that sewerage in that form was available in Moorabbin in 1924, it may have been contemplated for the future. The reserve is 10ft wide. That was the typical, and most common, width for such laneways provided in subdivisions during the first decades of the 20th century. Such rear lanes were to provide for drainage, including stormwater runoff, and to provide access for the night cart service to carry away night soil from pan lavatories. The width of 10ft is considerably in excess of what would be required for pipe drainage and sewerage where no vehicle access was intended. In modern subdivisions, such facilities are normally contained in easements seldom exceeding to 6ft of 2 metres in width. In fact, a drainage and sewerage easement is to be found in the 1924 subdivision running along the rear of properties facing the eastern side of Wembley Avenue. That easement implies no laneway or access, but rather a place for pipes, and not to be built on for that reason.

9 All this indicates that the drainage and sewerage reserve along the western edge of the 1924 subdivision was intended to provide access for people and vehicles, at least including night carts. The 1924 subdivision having been designed and laid out before the 1925 one, had to make provision in relation to its western most allotments without knowing the street and allotment layout that would be adopted in relation to the land to its west. It is fortuitous that the right-of-way in fact runs alongside, and adjoining, the reserve so as to provide a wider and more convenient lane.

10 I am prepared to accept, on the basis of the available evidence, including the evidence available in relation to physical circumstances, that the laneway including its ROW portion and its reserve portion, is to be regarded as a public highway so far as the law is concerned. This is so, if not by proclamation or by operation of statutory law in relation to the carrying out of the subdivisions, then by dedication and acceptance in accordance with common law principles.

11 The 1924 subdivision in fact has a number of dates on it. One notation refers to "Consent of Council" as 13.10.1924. There is another notation saying "Declared by S. Tuxen 17.10.1924". There is a small rectangle containing the word "STAMP" with the date "27.2.1925". Further notations in the bottom left corner read:

12 The current certificates of title in relation to the allotments constituting the review site are both dated 4 July 1946. Each notes the encumbrance of a covenant contained an instrument of transfer No. 1482295 in the register book. This transfer of land is dated 25 May 1931. It transfers a larger parcel of land comprising four allotments in plan of subdivision No. 10580. The covenant involves certain restrictions on the purchaser of that larger parcel of land and her transferees for the time being including that she (the transferee was a woman) will not remove earth, gravel, sand and the like from the land except for the purpose of laying foundations for buildings to be erected on the land and:

"That any building erected on the said land shall have its front elevation to the road to which the said land hereby transferred has a frontage."

13 I will need to consider the wording of this covenant further. Several of the objectors own land having the benefit of this covenant. They are Mr. & Mrs. Mulcahy, Mr. & Mrs. Laws, Mr. Rose and Ms. Dougall. Other objectors, including Mr. O'Sullivan, own land in the 1924 subdivision that does not have the benefit of the covenant affecting the two allotments in the review site. In fact, his land is subject to a fairly similar, but differently worded, covenant. His covenant includes the words:

"Such building or buildings shall have its or their front elevation to Wembley Avenue on the said plan of subdivision."

14 The transfer of land of 1931 records the covenant imposed on the four lots to which it applies, including the two comprising the review site. Presumably it was not until 1946 that ownership of the two lots constituting the review site was separated from the other two, and from each other. This accounts for the two certificates of title of that year. The benefit of the covenant runs with the land, and thus it is recorded as an encumbrance on each certificate of title.

15 As I have said, there is an existing house on each of the two allotments constituting the review site. It is proposed to retain the existing house on the northern-most allotment known as No. 7 Wembley Avenue. The single storey house on the other allotment is to be demolished. There is an existing two storey house on the next allotment to the south. It is then proposed to construct a new two storey house on No. 5 and a second two storey house on a site to be comprised of approximately the rear third of both of the existing allotments. Thus there would be three houses on what is now two allotments, each having a site of approximately 2/3 of the existing allotments, the rear dwelling having the rear 1/3 of each of the existing allotments.

16 This arrangement requires planning permission for the second dwelling, and the first permit application and application for review also seeks modification of the restrictive covenant to allow this arrangement. The rear house would front the laneway, and the end of Correa Avenue with pedestrian and vehicle access being taken from the laneway. Although the vehicle access could be immediately opposite Correa Avenue, it is in fact proposed for the abutment to the laneway a little to the north in the vicinity of the present rear boundary of No. 7 Wembley Avenue. Although there is room for some argument as to whether vehicle access to a double garage at that northern end of the proposed site is to be preferred, overall, I consider that the proposed arrangement is superior to the alternative.

17 The second proceeding is for a re-subdivision to provide a separate title for each of the proposed houses, that is, the existing one and the proposed two new ones.

18 Notice was given of the applications and objections were received to the application for the proposed development in the form of new buildings and the modification to the restrictive covenant. As I have observed, some of the objections were from owners of land having the benefit of the covenant, and some were from neighbours (such as Mr. O'Sullivan) who do not enjoy that benefit. The objections did not distinguish between objections directed to the planning merits of the proposed development on the one hand, and those relating to the restrictive covenant on the other. Mr. O'Sullivan, although not enjoying the benefit of the covenant, nevertheless, made reference to it.

19 The Responsible Authority considered the planning merits of the proposed building development and decided that, on those merits, the proposal was appropriate. If it had not been for the existence of the restrictive covenant, the Responsible Authority would have determined to grant a permit. The reasons for this view on the merits is set out in the written submissions made on behalf of the Responsible Authority. I agree with the view taken by the Responsible Authority and the reasons given for that position.

20 I will now consider the objections raised by the objectors to the planning merits of the proposed building development.

21 The proposal is said to amount of an overdevelopment of the site. I agree with the Responsible Authority that it is not. In fact, the proposal is less pressed as to space than many proposals for a second dwelling on a single allotment because, obviously enough, there is more space for three dwellings on two lots than for two dwellings on one lot. The open space provisions and setbacks are suitable, and I am unable to agree that there is an overdevelopment on that account. Because there are two street frontages, counting the laneway and Correa Avenue as one, space is saved by not having to provide access through the land from Wembley Avenue to the rear dwellings.

22 It is said that there is no valid reason to remove the restrictive covenant. That is really something that goes to the restrictive covenant, rather than the form of the proposed building development. In any event, it is more to the point to ask whether there is a reason why the covenant should not be modified. There frequently will be good reasons, as to merits and/or legal reasons, for not modifying a covenant, or for not being able to modify it, at least by means of the permit procedure. If there are no reasons why it should not be modified? The fact that the owner of the land wants to change would constitute a reason for modification if thee are no countervailing reasons against it.

23 It is argued that this proposal would create a precedent. Of course, there is nothing wrong with creating a precedent unless it was to be a bad precedent. In any event, the doctrine of precedent, as it is applied in court, does not apply to the deliberations of this Tribunal. The site situations of various cases do inevitably vary, one to another. The Tribunal does seek to apply sound planning principles to its decisions, and from this point of view it is often helpful to consult previous decisions where various aspects of planning problems have been thought out to see what light they can throw on the appropriate decision in a particular case under consideration. However, this is not the same thing as any strict doctrine of precedent. In any event, it would not be right to refuse an appropriate development here for fear that it might be argued to be a precedent for an inappropriate development somewhere else later on. The correct approach would be to grant this proposal and refuse the later one, if for some reasons it was inappropriate. Furthermore, precedent is not likely to arise as to most aspects of this proposal because of the almost unique aspects where two adjoining lots are available and it is proposed to erect three dwellings and re-subdivide. Mr. O'Sullivan's fears of a battle-axe subdivision have really got nothing to do with this proposal at all.

24 It is said that the proposed use of the lane is inappropriate. It has always provided access, including vehicle access, and so far as the right-of-way side of it is concerned, public access. As a public highway people are entitled to use it. That is its purpose. That is why it is formed, gravelled and maintained, at least from time to time. I am informed that this maintenance is carried out, when thought necessary, by the municipal council. It is sometimes pot-holey and presumably needs some grading or re-surfacing or re-gravelling. It is used, but is not subject to heavy usage. The minimal use to be occasioned by the third dwelling will not be perceptible in the scheme of things, and certainly is well within the carrying capacity of both Correa Avenue and the laneway. It seems rather odd to suggest that the lane should not be used for the purpose for which it is provided. Any increase in pot-holing, wear and tear, dust or maintenance will be so minor as to be imperceptible. The suggested increase in noise from vehicles will also be trifling. Vehicles entering from Correa Avenue will only have a few yards to travel, and the circumstances of vehicle travelling such circumstances will necessarily be at a slow speed and not prone to create noise nuisances. Any change in the noise environment will be imperceptible.

25 It is suggested that the safety of the laneway might be compromised, presumably for current users including pedestrians including Mr. O'Sullivan's little children playing in the lane while he attends to his extra territorial gardening. Even with the low usage of the lane at present, and the continuing low usage of the lane if the proposal goes ahead, it is not appropriate to allow little children to play in this area unattended. (Mr. Sullivan does not do this) It is already to dangerous for that, and the situation will be unchanged. Usage is low and visibility is suitable so that danger of vehicle collisions is not greater than in ordinary circumstances. Indeed, vehicle collisions are likely to be less frequent than in most such circumstances.

26 It is suggested that coastal vegetation along the edges of the lane might be lost. There is some vegetation, but no particular reason why it will be lost. If it was necessary to remove some of it for access purposes, then that would be consistent with the real purpose of the lane, although there is no reason to suppose it will be lost in any event.

27 It is suggested that there could be parking problems, and parking in the lane. In the first place, only one house, and one household, will have access (including vehicle access) via the lane. This is compared with the current situation where two dwellings have and can use access to the lane. Furthermore, the proposal includes a double garage with a hard standing apron 5 metres long in front of it so that there will be off-street parking for four vehicles. This is ample provision. I think it was Mr. O'Sullivan who speculated that you could have a family of two adults and three teenage children with five cars. That is a possibility for any house, although the situation is likely to exist for only a short time. Very few places have off-street provision for four cars. Planning cannot go beyond ensuring that there is adequate provision.

28 In any event, there is no particular reason why a car could not park in the lane, having regard to its width. Nevertheless, that is probably unlikely. A visitor not parking on the concrete apron would probably park in Correa Avenue. There is no particular reason why that is objectionable.

29 It is objected that this proposal would alter the neighbourhood character of 1950's to 70's style houses. There is nothing untoward about having two storey houses amongst single storey, although there are already two storey dwellings. The proposal is not inappropriate from this point of view.

30 Objection was taken as to the streetscape view from Wembley Avenue. There would be some view of the rear house able to be obtained between the existing house on No. 7 and the proposed new two storey house for No. 5 Wembley Avenue. Arguments on this point fail to take account of the fall of the land from east to west and the receding effect of distance where the rear dwelling would be in the order of 44 metres from the street frontage and at a lower level. Furthermore, not only was this objection based on elevation plans that did not take account of distance and levels, but it was not in relation to the plans now proposed. The currently proposed structure of the rear dwelling has a reduced first floor so that intrusion at that level into the view line along the corridor between the two other houses is relatively limited. Garages and fences in between will further restrict the view at ground level. I agree with the Responsible Authority that the proposal should not be refused on account of this consideration.

31 It was also said that the south setbacks at 1.9 metres are contrary to the guidance provided by cl.55 of the relevant planning scheme. Clause 55 would indicate a 2 metre setback. This difference is so minor, in the scheme of things, as to be trifling. If necessary, I could impose a condition requiring the buildings to be relocated 100mm (that is about 4 or 5 inches ) further to the north, but I consider it quite unnecessary to do so.

32 The question of overlooking was raised, although there are no significant problems of this sort, and the minor question that does arise can readily be dealt with by a condition.

33 It was also suggested that property values might be adversely affected. I suspect it is more likely that they would be positively affected but, in any event, that is not to the point. Property value is not, in itself, a planning consideration. Amenity questions are, and if values are affected by adverse amenity effects, then it is the amenity questions that must be considered, not their ramifications in terms of property values.

34 As I have said, I agree with the Responsible Authority as to the planning merits of the proposed building development.

35 The Responsible Authority in fact refused the proposal on the ground

"Variation of the covenant would be contrary to Section 60(5) of the Planning and Environment Act 1987 as the Responsible Authority is not satisfied that the proposal meets the requirements of Sections 60(5)(a) and (b) of that Act."

36 Section 61(4) PE Act provides that a permit cannot be granted that would authorise anything that would result in a breach of a restrictive covenant. That means that the permit sought cannot be granted if it would result in such a breach, unless the covenant is varied so that the proposal would no longer be contrary to it.

37 This calls for consideration of what the covenant in fact provides for, so as to determine whether the proposal is contrary to it. It is also relevant to consider and bear in mind what it provides for to enable a proper consideration of s.60(5) PE Act. That sub-section applies to the power of the responsible authority, or this Tribunal on review, to vary or remove a restrictive covenant. The proposal, in this case, is to modify the covenant.

38 Section 60(5) in fact imposes a high and strict test which severely restricts the ability of the Tribunal (on review) to modify a covenant. It severely restricts that possibility, but does not prevent it altogether.

39 The sub-section provides that the permit for modification cannot be granted unless the responsible authority (or Tribunal) is satisfied in relation to paragraph (a) and (b) of sub-section 5.

40 Paragraph (a) requires satisfaction that the owner of land benefited by the covenant will be unlikely to suffer any detriment of any kind as a consequence of the variation of the restriction.

41 This is a severe test in that any detriment, even a minor one more than counter-balance by positive considerations, will be sufficient to bar the granting of a permit. However, the test is not whether it is possible for detriment to be suffered. It is sufficient for the Tribunal to be satisfied that the owner of the land benefiting is "unlikely" to suffer any detriment. Furthermore, it has to be a detriment consequent on the variation of the covenant. There may be all sorts of detriments related to a possible development, but if they are unrelated to the covenant, then they are not relevant from the point of view of s.60(5)(a). For example, a covenant providing that there shall be no front fence and that letterboxes shall be painted green modified to allow front fences to a height of half a metre and allowing letterboxes to be red or green is not relevant to whether a particular proposal will increase traffic and overlook or overshadow adjoining properties. The relevance of this consideration must be born in mind in the present case, because of the limited nature of the covenant imposed. This is not a so-called "single dwelling" covenant providing that no more than one dwelling may be erected on the land.

42 Apart from paragraph (a), there is paragraph (b) of s.60(5). It provides that the Tribunal cannot grant a permit for modification of the covenant unless it is satisfied, if the owner of land benefiting has objected to the grant of a permit, that the objection is vexatious or not made in good faith. This second requirement must be satisfied, but only where there is an objection from an objector who is also the owner of land benefiting. There are such objections in this case. They will bar relief unless such a objection can be seen to be vexatious or not made in good faith. The requirements of paragraph (b), where they apply, are cumulative on paragraph (a); but the exemptions of vexatiousness or lack of good faith are alternative. In other words, it is sufficient for the objection to be either vexatious or not made in good faith.

43 I return now to the terms of the particular covenant relevant in this case. There are often difficulties in interpreting and applying such covenants. They are often badly drawn and commonly contain ambiguities or other infelicities of expression. Previous cases are often quoted, and are often of little value because of differences in the terms in which covenants are expressed and the different contexts (often other than covenants in contracts for sale of land) in which words and phrases are used. Words and phrases frequently have several meanings depending on context. I was referred to several cases in this instance including Shelton Finnis Architects Pty Ltd v. Port Phillip CC and Richards (unreported P2174/2003) and Dukovski v. Banyule CC [2003] VCAT 190 (13 February 2003). I have not found them to be helpful. The Shelton Finnis case uses frontage in relation to the house rather than the land on which the house stands and I encountered difficulties with the Dukovski case.

44 In this present case, the covenant is concerned with the "front elevation" of any building erected on the land. It does not speak of the frontage of the house or building. The word frontage is used, but in relation to the land itself, not the building. It refers to "the road" as if there was only one of them, although it may be that the singular, in this instance, includes the plural. It refers to "a frontage" of the land which implies that there might be more than one of them. It refers to buildings, rather than house or principal building or principal house.

45 It is argued on behalf of the applicants that this land has frontages to two roads namely Wembley Avenue on the one hand and the lane and/or Correa Avenue on the other.

46 I think this is true at the present time. Furthermore, the owner of land is entitled to access via any public highway to which it abuts. However, the covenant was apparently created in 1931, and carried forward into the Certificates of Title issued in 1946. The 1920s, up until October 1929, were generally speaking, a time of post-war (First World War) prosperity. After October 1939 there was a very severe world depression that had severe adverse affects in Australia more or less until the commencement of the Second World War. Many outer suburban (as they then were) subdivisions were created during the 20's that were not finally sold as individual allotments or developed until the post-war period. It appears that this might well be a case in relation to the current review site. However, if the covenant was created in 1931, was the rear abutment a frontage to a road at that stage? This would be, by no means, an easy question to answer.

47 However, the application supposes that an amendment to the covenant is needed, indeed the application giving rise to this proceeding, seeks such a modification. The original permit application form did not, but it was apparently modified so that when notice of the application was given it included reference to the proposed covenant modification.

48 One of the oddities of this covenant is that it applies to "any building" erected on the land. This appears to mean that any garage, woodshed, garden shed or outdoor privy would have to have its front elevation to the road, even if it was entirely hidden behind a house. This is absurd, and was agreed, at least by Ms. Bowden, to be absurd. I am satisfied that the real intention of this covenant is to achieve what might be called an urban design objective to make sure that houses should have their front elevations to the street. A house should not be erected on the land facing its front elevation to the rear of the site so as to present a backyard and service area with clothes line, vegetable garden, garden shed and gully trap to the front street. Incidentally, the current house on No. 5, and the house on the block to the south, both appear to have their "front facades" to their side boundaries and present a side of the house, in each case, to the street frontage. However, if that is a contravention of the covenant, it is one that has already been achieved and is not now in point.

49 The urban design objective is achieved if any house, or at least the front house on an allotment, faces the relevant street. Unlike the covenant in relation to Mr. O'Sullivan's land, the street is not specifically nominated in this instance. In his case, Wembley Avenue is specified. In any event, it is beside the point whether a garden shed in the backyard behind the house happens to face Wembley Avenue or in any other direction.

50 It must be remembered that this covenant does not restrict the number of houses to be erected on either of the allotments. It is clear that it allows more than one building containing a dwelling house providing the front elevation of each is to the street (argued by the Responsible Authority and the Objectors to be Wembley Avenue). There could be two dwellings side by side both fronting the street, and there would be no contravention of this covenant. There could be two dwellings, one behind the other, both with their front elevations towards Wembley Avenue, and again with no contravention of this covenant. It is arguable that there could be two dwellings, one behind the other, with one facing Wembley Avenue and the rear one facing the lane without contravention. In terms of what I take to be the purpose of the covenant, what I have called the urban design purpose, it is immaterial, if there are two dwellings on the house, which way the front elevation of the rear dwelling faces if it is completely or substantially screened by the front one. There will not be a backyard and service area presented to Wembley Avenue, or for that matter to the lane, in any event.

51 Bearing in mind the limited nature of the covenant in this case, I am satisfied that its modification to allow the current proposed development is not likely to occasion any detriment to the owners of land benefiting by the covenant.

52 Over-development is not to the point. This covenant does not prevent over-development. It does not restrict the number, size or density of the dwellings or buildings on the land at all. The use of the laneway is not affected. There could be a second dwelling, with its front façade toward Wembley Avenue in accordance with the interpretation favoured by the Responsible Authority and the Objectors, but still had vehicle and other access from the laneway. Questions of loss of vegetation or parking are unaffected. Neighbourhood character is not relevant to this covenant except for the consideration of the orientation of the front elevation of the buildings. None of the various detriments referred to by the Objectors are relevant to, or would be prevented by, the covenant. If the front elevation of a rear house was to face the lane that would not, in my opinion, adversely affect the purpose, as I discern it, of the covenant. As a matter of fact, it enables a superior result to one that would otherwise be clearly in compliance with the covenant. It is much better that the rear house face the lane. It provides a more attractive, interesting and safer aspect to the laneway and as a termination across the end of Correa Avenue. This proposal is an enhancement, compared to what would legally be available if no modification was to be granted. I am, therefore, satisfied in terms of s.60(5)(a) PE Act that this proposal is unlikely to occasion any detriment of any kind as a consequence of the proposed variation of the covenant.

53 So far as s.60(5)(b) is concerned, I am satisfied that the objections are vexatious. I do not mean that they are not made in good faith in the sense of being dishonest. I do not mean that they are vexatious in the sense of being raised to annoy or embarrass the applicant, or anyone else. They may amount to a very weak case against the proposal, but I do not need to decide whether they are vexatious in the sense of being so unarguable as to be utterly hopeless. I am satisfied that they are vexatious in the sense that they are designed to achieve an ulterior purpose. The objections by the owners with benefit are designed not to uphold the covenant and its purposes in terms of urban design, but to seek to achieve the defeat of the development proposal for reasons under-related to the covenant and because the Objectors do not like the proposal for such other reasons. I have found that these other reasons are unsustainable in terms of planning merits of the proposed development. I also find that they are not relevant to the covenant properly interpreted, or the purposes behind it. I therefore find, in the rather unusual circumstances of this particular case, and this particular covenant, that the objections are vexatious. I think the proposed modification to allow the development is appropriate and should be granted.

54 So far as the proposed subdivision is concerned, its outcome was agreed to be dependent on the outcome of the earlier application. No reasons particular to the subdivision were advanced for its refusal and I see no reason against granting permission for it.

55 The Responsible Authority provided a set of draft conditions in relation to each proposal for which a permit was sought. These draft conditions were discussed in the course of the hearing. I propose to grant permits subject to conditions based on those drafts in the light of the discussion and subject to further alterations or tidyings up as I consider appropriate. Each draft has notes at the end. Although I do not object to the inclusion of such notes as a means of conveying information, they are not part of the permit and are not part of my order.