1. I do not share the Responsible Authority's concern that an owner of benefiting land is likely to suffer a loss of amenity as a result of an additional dwelling on the subject land. I consider that any traffic generated by the addition of a second dwelling on the subject land would have a negligible impact on Hotham Crescent and would not cause the benefitting owners or objectors, to suffer any amenity impacts. I am also not persuaded that current traffic flows or on-street parking demand[12] in Hotham Crescent, a local road, are significant. I am also satisfied that it is possible for a second single storey dwelling to be developed to the rear of the subject land without any significant amenity impacts, such as overlooking or overshadowing.[13]
2. Furthermore, as the variation of the covenant will not itself authorise the construction of a second dwelling on a lot, the Respondents will have an opportunity to make submissions about the Applicant's permit application to the Responsible Authority.[14] Any application to construct a second dwelling will be required to meet the requirements of Clause 55, including neighbourhood character objectives and the amenity of the existing dwellings. The Responsible Authority will also be required to have regard to the decision guidelines in Clause 65.

1. I do not consider that the variation of the covenant will change the character of the neighbourhood in any material way. The Responsible Authority has already permitted two covenant variations at 51 and 57 Hotham Crescent, where two dwelling have been constructed on each lot. The Responsible Authority acknowledged that the design of those developments was an appropriate response to the existing neighbourhood character.
2. I consider that the introduction of a second single storey dwelling to the rear of the existing dwelling will not be a dominating visual element or even particularly discernable from the streetscape. I also consider that the issue of the "backyard scape" can be dealt with at the application assessment stage by the Responsible Authority.

1. I do not accept the objectors' submissions that they will suffer material detriment because it was their expectation when they purchased their lots that the subject land would not be developed for more then one dwelling. The legislation and the Planning Scheme provide for restrictions to be varied in appropriate cases. Further, the fact that beneficiaries may be impacted by perceived detriment from an alteration to their original expectation is not a ground for refusal under section 60(2) of the Act, as it is for older covenants.[15]
2. In addition I have placed little weight on Mrs Robinson's submission that the variation of the covenant will have an adverse impact on the gas and fuel easement on the subject land. There is a separate legislative regime for the protection of subdivisional regulatory gas easements.[16] Furthermore, any application to subdivide the subject land must be referred to the relevant gas company for comment.[17] In light of this I do not consider that the easement has any significant bearing on the question of the variation of the covenant.

1. I am satisfied that the variation of the registered restrictive covenant will be unlikely to cause the benefitting owners to suffer financial loss, loss of amenity, loss arising from the change to the character of the neighbourhood or any other material detriment. I am also satisfied that the variation will not detrimentally affect the interests of affected persons.
2. The decision of the responsible authority will be set aside and a permit will be granted to vary the covenant to allow the construction of a second single storey dwelling on the subject land.

The permit allows the variation of the restrictive covenant contained in Instrument of Transfer No R729849X by substituting the words:

• "a single dwelling" with the words "two single storey dwellings"; and
• "such" with "each"

1. A plan of variation of a restriction must be submitted to the Responsible Authority for certification.
2. The certified plan must be lodged with the Office of Titles for registration in accordance with section 23 of the Subdivision Act 1988.
3. This permit will expire if the certified plan is not lodged at the Office of Titles for registration within two years of the date of this permit. In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the period referred to in this condition.

[1] I was informed that the Applicant has since lodged a second permit application (on 14 November 2013) with the Responsible Authority for the development of a second dwelling on the subject land. Mr Easton indicated that the Responsible Authority has placed its assessment of that application on hold pending the outcome of this proceeding. The contents of that application were not presented to me.

[2] Section 60(2) of the Planning and Environment Act 1987 applies to restrictions which were registered or created before 25 June 1991 as per section 60(4) of the Planning and Environment Act 1987.

[3] The lots are in Plan of Subdivision LP221312N.

[4] They are also Respondents in this Proceeding

[5] Mr and Mrs Evans submitted an objection to the Responsible Authority but are not Respondents to this Proceeding.

[6] Mr and Mrs Sawyer also submitted a written objection to the Responsible Authority but are not respondents to this Proceeding.

[7] Mrs Robinson indicated at the Hearing that she believed she was a benefitting owner. However I accept that her property being Lot A on LP221312N, is specifically excluded by the terms of the restrictive covenant.

[8] Section 57(1) of the Planning and Environment Act 1987 permits any person who "may be affected" by the grant of a permit to object. The decision guidelines in Clause 52.02 Easements, Restrictions and Reserves require consideration to be given to the interests of affected people.

[9] This is consistent with the approach of Deputy President Gibson in Hill v Campaspe SC (Red Dot) 2011 VCAT 949, [52], [60].

[10] Slaveski v Darebin CC [2006] VCAT 593, [32].

[11] See also Giosis v Darebin CC (Red Dot) [2013] VCAT 825, [21].

[12] Particularly as Mr Tottle conceded that all of the houses in the street have on-street parking.

[13] The Responsible Authority recognised in its submission that any amenity impacts could be reduced through a good design approach.

[14] Clause 33.01-4 of the Wyndham Planning Scheme requires a permit to construct a second dwelling on a lot.

[15] Section 60(5) of the Planning and Environment Act 198 requires perceived detriment to be considered with respect to restrictions registered or created before 25 June 1991. See discussion of Member Cook in Davis v Campaspe SC [2013] VCAT 1497, [39], [41].

[16] The Schedule to the Gas Industry Act 2001 gives a gas company specific rights in relation to an easement, including in paragraph (c) the right to keep the land free from buildings or obstructions (including trees).

[17] Applications to subdivide land crossed by a gas transmission pipeline easement must be referred to "the relevant gas supply authority," pursuant to clause 66.01 of the Wyndham Planning Scheme and section 55 of the Planning and Environment Act 1987 .