These matters are adjourned to an administrative mention 28 days after the date of this document. The parties are not required to attend on the date of the administrative mention. Rather they are to advise the Registrar in writing by that date whether any in which of the proceedings are to be withdrawn, whether any and what new proceedings are to be commenced in relation to these matters, whether a further hearing is required and whether the parties are ready, in that event, for such further hearing to be fixed.

I direct that the address for service for the Park Orchards Ratepayers Association Inc. be care of David Mayor, Honorary Secretary, 677 Park Road, Park Orchards 3114 and that the records of the Tribunal be amended accordingly.

_________________

RUSSELL BYARD

SENIOR MEMBER

Ms. Natasha Swan, town planner of the City of Manningham, appeared for the responsible authority. She presented written and oral submissions.

Mr. Robert Easton, town planner, appeared for the applicants, Mr. and Mrs. Coleman. He presented written and oral submissions.

Mr. David Mayor, a retired solicitor who is the honorary secretary of the Park Orchards Ratepayers Association Inc. appeared for that association and Mr. Steve Graham in relation to application for review P2607/2004. The matters dealt with in the course of the hearing on 15 March 2005 did not really involve the association or Mr. Graham although Mr. Mayor, at the end of the hearing, tendered a brief written submission, perhaps as a matter of completeness.

Applications under s.77 of the Planning and Environment Act 1987 (PE Act) for review of a decisions of the Responsible Authority to refuse to grant permits.

Application under s.149A of PE Act for a declaration.

Application for a declaration in the following terms:

That no planning permit is required under the Manningham Planning Scheme for the use of the outbuilding constructed in 1988 on the subject land as part of the dwelling on the land including the use of the outbuilding or any part of the dwelling to (sic) house boarders, carers or family members or home occupation or any other purpose for which a dwelling may be used without a planning permit.

Low Density Residential Zone and subject to a Significant Landscape Overlay under the Manningham Planning Scheme.

The land is subject to a restrictive covenant contained in transfer of land B90526 whereby the purchaser bound himself and his successors in title to a restrictive covenant in the following terms -

that he or they will not at any time hereafter excavate carry away or remove or permit to be excavated carried away or removed any earth clay stone gravel or sand from the Lot hereby transferred except for the purpose of excavation for the foundations of any building to be erected thereon or use the same or allow or permit it to be used in any manner for the manufacture of bricks tiles or pottery ware and that he or they will not at any time hereafter build construct or erect or cause or permit to be built constructed or erected on the said land any building other than one private dwelling house with the usual outbuildings and such building shall be in accordance with plans and specifications to be approved in writing by or on behalf of the said transferors.

That transfer is dated 25 October 1960 and the transferors were Robert Leslie Montgomery, Ernest John Lesley Edmonds and Kenneth Matheson Hope McGillivray, all of 309 Bourke Street, Melbourne, directors.

1 There is a house on the land that is the subject of these proceedings. It has stood there at all material times. Within the grounds of the house there is a swimming pool. Beside the swimming pool there is a second building. This building was constructed in 1988. It was constructed originally as an outbuilding in relation to the existing house and swimming pool. It contained a rumpus room, changing room, shower and toilet. There was no problem, so far as town planning is concerned, at that stage.

2 Mr. and Mrs. Coleman live in the house. At some time after the construction of the second building they needed to accommodate the elderly mother of one of them. Her name is or was Mrs. White.

3 It was decided to accommodate Mrs. White in the outbuilding. Some alterations were made to it for that purpose. A full kitchen was installed. In fact, the place was fitted out in such a way that it could be used as a dwelling, at any rate within the now current planning scheme definition of that term. Mrs. White resided in the second building for 14 years. I do not have detailed evidence about how her occupation of the second building was related to the occupancy of the main house. I do not know whether she conducted a separate household of one person, or whether the basis of her occupation was more as a member of the Coleman household with her residing in the detached second building. However if she was a member of the Coleman household who simply had sleeping and living space in the second building the fitting out of a separate kitchen would not be warranted.

4 No planning permit was sought or obtained in relation to the occupation of the second building by Mrs. White or in relation to fitting it up for that purpose.

5 As a point in passing the second building is not now, and cannot be used as a "Dependant Person's Unit" within the definition of that land use in the planning scheme. To be a dependant person's unit the accommodation must be a moveable building whereas this one is a fixture. It also follows that this second building could not be a dependant person's unit at any previous stage during which the then current planning scheme specified that such a unit must be a "moveable" building. I am informed that, at the time of construction of the second building the responsible authority was the City of Doncaster & Templestowe and the land was subject to the Doncaster & Templestowe Planning Scheme. Furthermore, I am informed, the planning scheme at that time only allowed dependant person's accommodation if it was part of the main house.

6 After Mrs. White ceased to occupy the second building, in fact in mid 2003, the Colemans rented out the second building to a couple who are not members of the Coleman family. The responsible authority received a complaint about this on 25 June 2003. Reference was made to an advertisement that apparently appeared in the local press reading:

Very private one bedroom unit at the side of a lovely home. Feature large lounge/family area and roomy kitchen with electric cooking. The bedroom as (sic, has ?) an ensuite and walk in robe. Tenant will have use of in ground pool. Separate access and off street parking.

7 The responsible authority was concerned because renting out the second building as a separate dwelling for a separate household (whether the household is comprised of several or only one person) is contrary to the planning scheme. That was the view adopted by the responsible authority. It issued a planning contravention notice on 19 November 2003 directing cessation of the illegal use. I have not seen the actual contravention notice but the records of the responsible authority indicate that the building has been unoccupied since 7 February 2004.

8 Mr. Easton indicated that the second building has remained unoccupied because his clients are being careful not to contravene the planning laws. He said that the declaration application that is before me is to clarify their rights as to what use can be made of the building, and (presumably) what use cannot be made of it.

9 However, the Colemans are also seeking to reduce the constraints that apply to their use of the land. They have applied for a permit for the variation of a restrictive covenant that applies to the land. That covenant is in the following terms:

that he or they will not at any time hereafter excavate carry away or remove or permit to be excavated carried away or removed any earth clay stone gravel or sand from the Lot hereby transferred except for the purpose of excavation for the foundations of any building to be erected thereon or use the same or allow or permit it to be used in any manner for the manufacture of bricks tiles or pottery ware and that he or they will not at any time hereafter build construct or erect or cause or permit to be built constructed or erected on the said land any building other than one private dwelling house with the usual outbuildings and such building shall be in accordance with plans and specifications to be approved in writing by or on behalf of the said transferors.

10 The responsible authority refused to grant a permit on that application. The Colemans have applied for a review of that decision.

11 The third proceeding before me is also an application under s.77 PE Act for review of a decision of the responsible authority to refuse to grant a permit. The permit application in that case has arisen from the enforcement actions undertaken by the responsible authority in relation to the occupation of the second building by the couple. The responsible authority was concerned that renting out the second building as a home for the couple amounted to, and evidenced, its use as a second dwelling on the land. The responsible authority said that a permit was needed to use the existing building as rental accommodation or as a rental dwelling.

Low Density Residential Zone and its Control Provisions

12 It appears that the responsible authority is correct in this regard. The land is in a Low Density Residential zone under the Manningham planning scheme. The zone provisions for that zone are found in cl.32.03 of the planning scheme. Clause 32.03-1 contains a Table of Uses. This table sets out purposes for which the land can be used without the need of a permit in its section 1 whilst prohibited uses are in section 3 of the Table. Section 2 of the Table contains a list of the uses that are lawful, but only if a planning permit is obtained.

13 The use "Dwelling" (other than Bed and Breakfast) appears in section 1. On the face of it then, the land can be used for a dwelling as of right, that is to say, without the need for a planning permit.

14 However, there is a qualification to this. If a condition is listed in the Table in relation to a particular use, then the condition must be met. If it is not met, then the use becomes a section 2 use requiring a permit unless the use is specifically included in section 3 of the Table. This is provided for in cl.31.01-1 of the planning scheme.

15 In section 1 of the Table there are two conditions that are applicable to the use "Dwelling". The first of them reads:

16 Thus, once there are two dwellings, dwelling ceases to be a section 1 use for which no permit is required.

17 In fact, section 2 provides specifically for a dwelling (other than Bed and Breakfast) if the section 1 use is not met.

18 The item in section 2 contains a condition that reads:

Must result in no more than two dwellings on the lot.

19 Clause 31.01-2 provides that a use in section 2 of the Table requires a permit and provides, furthermore, that any condition in relation to it must be met. If the condition is not met, then the use is prohibited.

20 The affect of all this is that dwelling, as a purpose for which land might be used, does not need a permit, provided that there is only one dwelling on the lot. If there are two dwellings on the lot, then dwelling becomes a section 2 use for which a permit is required. Use for three or more dwellings is simply prohibited.

21 The renting out of the second building is important evidence of use of the land for a second dwelling. It is the use as a second dwelling that amounts to a contravention, not the fact of rental. There has been a confusion here between the relevant fact, and evidence available to establish or prove that fact.

22 There is nothing in the planning scheme that says a permit is required to use an existing building for rental accommodation. In my opinion that application for review seeking permission to use the land for rental accommodation, and the permit application giving rise to it, are misconceived. The point is that a permit is needed to use the land as a second dwelling, not to use the second building as rental accommodation.

23 During the hearing it was realised that the declaration application really raises what can be regarded as a prior question. It was agreed that I should determined that application, and hold the other two cases in abeyance for further consideration, if necessary, after the result of the declaration application has been established, and after the parties have had an opportunity to consider their position in the light of that determination.

24 I propose to now consider further the legality of the use and development of the second building.

25 There is no problem about the second building when it was a rumpus room and changing room etc in relation to the swimming pool.

26 The installation of a full kitchen and conversion to habitation occurred later. I do not have the relevant provisions of the planning scheme that applied at the time these conversion works were carried out. I am informed that a planning permit was required and that no such permit was obtained. The building could not satisfy the definition of dependant person's unit because of its lack of moveability and therefore, I was informed, a permit was needed under the planning scheme to convert it, in effect, into a fixed accommodation for a dependant relative.

27 It must be remembered that this Table of Uses in cl.32.03-1 refers to the "use" of the land for various purposes and identifies those uses for which a planning permit is required. The table does not deal with "development" of the land. The actual construction and the converting of a building amounts to development. The planning scheme does impose the need for a planning permit for certain developments, but the requirement for such development permits is imposed in other provisions, not in the Table of Uses.

28 The provisions in relation to development appear in subsequent parts of cl.32.03.

29 Clause 32.03-4 deals with development where it provides that a permit is required to construct or carry out a building or works associated with a use in section 2 of cl.32.03-1. Building in this context includes part of a building. The works involved in the conversion of the second building to create a second dwelling amount to the construction or carrying out of a building or works require permission under cl.32.03-5.

Dwelling as a Land Use and Dwelling as a Development

30 As a matter of fact, the planning scheme sometimes uses the word "dwelling" to mean a purpose for which land is used. The term is used in that sense when it appears in the first column of the Table of Uses. However, in some contexts the planning scheme uses the word "dwelling" to mean the building or development in which the use of dwelling might be carried out.

31 This point is brought out more clearly in the zone provisions for a Residential 1 zone as contained in cl.32.01-4. In the Residential 1 zone dwelling is a section 1 use in the Table of Uses for that zone, but in that zone there is no condition, as appears in the Low Density Residential zone table, providing that there must only be one dwelling on the lot.

32 However, cl.32.01-4, in relation to the Residential 1 zone, does make reference to the question of the construction of two or more dwellings on the land. It provides that a permit is required to construct a dwelling if there is at least one dwelling existing on the lot.

33 The thing to be noticed here is that the word "dwelling" in this context appears in the phrase "Construct a dwelling". In other words in cl.32.01-4 refers to the building of a house, not the use of a house as a residence.

34 It has been the position of the responsible authority throughout that its concern is directed to the actual, threatened or potential use of the second building as a second dwelling. The responsible authority has no objection to the second building being there, and has no objection to it being occupied, for example as sleeping accommodation by a member of the Coleman household. If, for example, the cooking facilities were removed, or perhaps even if they were only reduced to be sufficient for snacks or breakfasts, the responsible authority would be content and would rest easy. A toaster and electric jug would be all right, a stove and oven would not. The Colemans could satisfy the responsible authority immediately by removing the stove and oven. This might be the only means whereby the Colemans can legalise their situation.

35 I have pointed out that the planning scheme uses the term "Dwelling" in two different senses. It employs the word as a land use term (see the Table of Uses referred to) and also as a term referring to a type of development as in the phrase to "Construct a dwelling" (see cl.32.01-4). There is sometimes a need to keep separate and distinct these two different usages and meanings of that one word.

36 In cls.72 to 75 of the planning scheme there are a number of definitions. In cl.72 there are definitions of so called "GENERAL TERMS" whilst in cl.74 there are "LAND USE TERMS".

37 If there was a definition of dwelling in the development sense (as in to construct a dwelling see cl.32.01-4) it would be in the general terms in cl.72. No such definition appears in cl.72.

38 The term "Dwelling" appearing in the Table of Uses however is a use of the word in its land use sense and any definition in that sense appears in cl.74. There is such a definition, applicable to the land use sense of the word "dwelling". It reads:

Dwelling a building used as a self-contained residence which must include:

a) a kitchen sink;

b) food preparation facilities;

c) a bath or shower; and

d) a closet pan and wash basin.

It includes out-buildings and works normal to a dwelling.

39 Of course, this second building includes each of the items a) to d) listed in the definition.

40 However, it was argued by Mr. Easton that the presence of each of these items a) and d) may not necessarily mean that the land is used as a second dwelling. It may mean no more than that the land has been developed so as to be capable of being used as a dwelling. This means as a second dwelling in its own right, as distinct from the dwelling in which the Colemans reside. Mr. Easton points to and relies on the word "used" in the expression "a building used as a self-contained residence".

41 In the land use definition of "Dwelling" the word "residence" means the home or residence of a household. A household may be comprised of one or more persons. Mr. Easton's argument is that if a person or persons slept in, or otherwise used the second building whilst they were really members of the Coleman household based in the other building, then he, she or they would not be a separate household, the second building would not be a second residence or a second dwelling, at least so far as the land use term "Dwelling" is concerned.

42 Mr. Easton pointed out that a house may have a sleep out, even a detached sleep out, in which a member of the household sleeps. In those circumstances there would still be only one household, one residence and one dwelling if, for example, a child of the Colemans slept in the second building, whether or not (so far as the land use definition is concerned) it contained all the items of kitchen sink, food preparation facilities, bath or shower and toilet.

43 Other ways in which the second dwelling could be utilised whilst remaining part of the single Coleman dwelling on the land would be if it was used for a home occupation or by some other member of the Coleman household for example a relative, servant, boarder, or carer. It all depends on whether they are part of the Coleman household.

44 Thus a relative, residing there temporarily or permanently, who is really part of the Coleman household will not constitute a separate household residence or dwelling. Whether a particular person does, or does not satisfy the requirement of being part of the Coleman household is a question of fact that would have to be determined on the facts of a particular situation if such person or persons were in fact in occupation.

45 If such a person, whether relative or not, had exclusive occupation of the second building in exchange for rent and lived their independently of the Coleman household, cooking all meals in the second dwelling (except if specifically invited for a meal with the Colemans), then that would be a separate residence. This could still be so if rental was not charged. Rental would be merely one element relevant to the question of fact to be determined.

46 A boarder is part of the household, even though such a person pays board. However, paying board means paying for a room to occupy and for meals. I consider that, to be a boarder, the boarder must normally take all or most meals, or at least specified, meals regularly with the family.

47 Servants who live on site are not a common feature in modern Australian suburban life. Nevertheless, such a servant is also a member of the household. Of course there can be many sorts of servants such as a cook, a housekeeper, a maid, a butler, a governess, a gardener and so on.

48 A companion or carer can also be a member of the household. Sometimes a frail elderly person will have someone living in as company, support and as an assistant with household tasks. Such assistance might be given by the companion for free or for payment. Such assistance need not be for a frail elderly person. It might be for someone who is young but crippled or incapacitated. I am informed that, unfortunately, Mrs. Coleman suffers from a degenerative disease. This partially incapacitates her, and her incapacity can be expected to increase as time goes on. The Colemans may need to engage a carer on this account. Provided the carer is genuinely a part of the household, and is not a separate household, it will not matter whether such carer assists for payment or as a gesture of charitable good will.

49 Understandably the responsible authority is concerned about a conclusion along this line. It raises difficulties about identifying whether or not there is a second dwelling and difficulties about obtaining evidence and proving the situation. If there are difficulties of proof, that is unfortunate. It does not alter the law involved. As already observed, some questions of fact can be clear and some hazy and difficult where honest opinions might vary as to the correct assessment in cases close to the differentiating line. If that is so, and such a question of fact has to be tried, then the evidence has to be called, and the tribunal or court involved has to make a decision of fact on the evidence.

50 The above analysis is in relation to the definition of dwelling as a land use term. As already, noted section 1 of the relevant Table of Uses allows only one dwelling. This is because the condition in relation to dwelling provides that the first must be the only dwelling on the lot. The question arises then as to whether the word "dwelling" in the condition means the land use term for dwelling or dwelling in the sense of a development in which the land use might be carried out. I think that, in the condition, the word must be used in the second sense. Otherwise, I think it is difficult to reconcile the provisions and to make good sense of them. If that is correct, then the existence on the land of a second building, fully fitted up for use as a dwelling separate from the main dwelling, is enough to mean that the condition is not satisfied and that the use of the land as a whole are no longer in section 1 where no permit is required, but is within section 2 of the Table of Uses where a permit is required. On this basis, the Colemans are in difficulties, not only if they actually use the second building as a second dwelling, but also where they have the building set up suitable for use as a second dwelling.

51 Be that as it may, they are certainly contravening the current planning control provisions in cl.32.03 if they are admit a second household into the second dwelling, whether for rent or otherwise. I think that is the situation, whether or not the conversion work was lawful at the time it was carried out. I do not really have sufficient evidence to determine that historical point.

52 I think the second building, with its various facilities including cooking facilities is a "Dwelling" in the development sense, apart from being a dwelling in the land use sense. The construction has occurred in two phases. The first phase was the construction of the rumpus room out-house. That was lawful. The second phase was the conversion of the rumpus room outbuilding into a dwelling in the development sense. The two stages, taken together, have resulted in the construction of a dwelling. This seems to have been an illegal development, at least to the extent of requiring a planning permit where none was obtained.

53 If it is necessary to establish whether or not it was and is an illegal development, there will need to be a further hearing and further evidence called. An enforcement application would squarely raise this issue.

54 The terms in which the Colemans have sought a declaration are as follows:

No planning permit is required under the Manningham Planning Scheme for the use of the outbuilding constructed in 1988 on the subject land as part of the dwelling on the land including the use of the outbuilding or any part of the dwelling to house boarders, carers or family members or home occupation or any other purpose for which a dwelling may be used without a planning permit.

55 That statement may be true enough as far as it goes, at least in terms of the land use term "Dwelling". In fact the formulation of the declaration sought is rather loaded in favour of the application. It rather "begs the question". It recites certain propositions of fact drawn from the planning scheme provisions and then asks for a declaration on the basis that, if those facts are true, the legal situation will be that no permit is needed. This is something of a hypothetical question. Courts and tribunals are not prone to making declarations about hypothetical situations. An application is more likely to be successful in resulting in a declaration if evidence is called to prove the existing state of facts, and the court or tribunal is then asked to declare what the legal situation is upon applying the existing law to those facts.

56 It must be remembered that a declaration is a discretionary remedy. An applicant cannot expect to necessarily obtain a declaration, particularly on a hypothetical question, and particularly if the declaration sought might be misleading or based on assumed but doubtful facts.

57 In this case a declaration is sought as a statement of what the Colemans can lawfully do. I think it would be misleading simply to make that declaration in that form when it appears that the second dwelling is unlawful both as a land use and as a development. It would also be inexpedient and unwise to make a declaration that purports to state the legal position if it only states half of the legal position. I propose to refuse the declaration application.

58 Mr. Easton referred to another matter. I am not sure that I can say that he referred to another argument. He made reference to the "SHARED HOUSING" provisions in cl.52.23 of the planning scheme. That provision reads:

A permit is not required to use a building, including outbuildings normal to a dwelling, to house a person, people or any dependant or two or more people (including people with intellectual disabilities) if the building meets all of the following requirements:

•

Is in an area of zone which is used mainly for housing.

•

Provides self contained accommodation.

•

Does not have more than 10 habitable rooms.

59 The three listed items are satisfied in relation to this case:

•

the land is in a zone used mainly for housing;

•

the building, or buildings, provide self contained accommodation; and

•

there are not more than 10 habitable rooms in either of the buildings or in the two buildings taken together.

60 The shared housing provisions, as I understand it, are included in the planning scheme to make it clear that a household does not have to be comprised of a family. For example, a group of three or four students might rent a house with self contained accommodation with less than 10 habitable rooms in a residential zone for them to live in and they will be treated as a household sharing a dwelling, notwithstanding that they are not related. Previous definitions had included reference to households being comprised of related people. The shared housing provisions are an exception making it clear that a permit is not required in the shared housing situation.

61 Mr. Easton introduced this reference and provided me with a copy of my decision in Cobden v. Greater Bendigo City Council [2003] VCAT 1359 (16 October 2003) where I discussed the subject of shared housing, to some extent, together with other somewhat similar provisions in relation to "community care unit" and "shared accommodation", the planning scheme provisions in relation to which are found at cls.52.22 and 52.44. The concepts involve are by no means simple and easy to understand, as can be discerned from a reading of my reasons in that case. In that case I discussed, and to some extent respectfully disagreed with some propositions in relation to these matters to be found in an earlier Tribunal decision of Intervarsity Developments Pty Ltd v. Frankston City Council [2001] VCAT 1016 (31 May 2001). The reasons given in that case do not detract from my proposition that the concepts involved are not simple. Also the reasons in these two cases contain discussion of policy matters and the history of the concepts dating back to their respective introductions into the relevant planning scheme. By relevant planning schemes I mean predecessors to the current Victorian planning schemes, predecessors that were current at the time of those amendments.

62 I would not wish to be unfair to Mr. Easton, but I gained the impression that he had not gone into these matters with sufficient thoroughness to have mastered the concepts involved or to have developed a relevant argument in relation thereto. He did not have a copy of the shared housing provisions in cl.52.23 available at the hearing. He was content to assume that the quotations in my previous decisions are sufficiently up to date. When difficulties in relation to the concepts were encountered in the course of discussion during the hearing Mr. Easton made the confession, if that is the appropriate term, that he is a town planner by profession, and not a lawyer. My reaction, which may have been unfair, was that this was tantamount to saying that he had mentioned shared housing on the basis that it looked superficially as if it might conceivably assist his clients' case, that he had not mastered the topic or worked out an argument to show that it was, and that he was leaving it to me to do the research and thinking through involved in working out whether he had a point that was of use to his client and if so, what it is and why it is valid. In other words, this is an invitation to me to do the advocate's job for him. It is an invitation that I decline to accept.

63 There is nothing wrong with raising legal points in Tribunal hearings. They should be raised if they are relevant. However, something more than just raising them is required. The advocate has an obligation to look into the matter, understand it and put forward an argument on it. Legal arguments are accepted from town planner advocates. If a planner thinks the legal questions involved require the advocacy of a lawyer rather than a planner, I suppose a lawyer can be engaged. It does not strike me as very fair to the other party to try and recruit the Tribunal to do the advocate's job. It is fairer if the other side hears the advocate's argument so as to have an opportunity to consider and counter it.

64 As things stand, if the advocate is content to say: Here is a concept, I think it might help my client's case; then I am prepared to take the position: I do not think it does, if you think otherwise you should have put forward your argument to that affect.

65 The restrictive covenant is another matter. It includes a covenant that the owner "will not at any time ... build, construct or erect or cause or permit to be built, constructed or erected on the said lot any building other than one private dwelling with usual outhouses". I think the rumpus room was a normal enough outhouse. The existing second dwelling, as I think it is for the purposes of this covenant, is another matter. It would appear to be prohibited by the covenant. It does not matter that the construction took place in two stages.

66 However, the restrictive covenant is not part of the public planning laws of Victoria enforceable under the Planning and Environment Act 1987 (PE Act) by prosecution or enforcement order. On the contrary, the restrictive covenant derives from a contract for the sale of land which is private law and gives rise to restrictions and rights that are part of private property law. The benefit of the covenant applies only to those pieces of land that have the benefit of the covenant, and the owners of such benefiting land. Apparently, in the circumstances of the present case, there are only four pieces of land benefiting. This was one of the last allotments sold in a large subdivision created long before the transfer out of this land in 1960.

67 To breach the covenant can be said to be "illegal", but only in the sense that it is contrary to private civil laws. The remedy cannot be obtained from this Tribunal. The owner of land with the benefit of the covenant would have to take action in court, for example by seeking an injunction, or possibly an injunction and declaration. Amendments to the PE Act in recent years have imposed some constraints that relate to restrictive covenants. These amendments mean that the responsible authority, and the Tribunal on review, cannot grant permission for a development that would, if carried out, constitute a breach of the restrictive covenant. However, the effect of that is merely that removal or modification of a restrictive covenant of that sort needs to be obtained before, or at least to the same time, as planning permission is sought for the development. The amendments dictate the order in which things must be undertaken. It is no longer open to obtain the planning permit for development first, and then seek modification or removal of the covenant later. However, those provisions do not alter the fundamental nature of a restrictive covenant, and do not make a restrictive covenant part of the public planning laws or enforceable under the planning legislation.

68 Mr. Mayor appeared for the Park Orchards Ratepayers Association Inc. On the appearance sheet the name Steve Graham appears. In fact a statement of grounds was lodged on behalf of the Association; or that is what was intended, although the proforma of the statement of grounds does not include the name of the Association. The name of the Association does appear on a rather confusing attachment, but the front sheet displays the names "STEVE GRAHAM PRES" and "DAVID MAYOR HON SECR".

69 There is a difficulty in this. The rights created by the restrictive covenant are confined to the four allotments having the benefit of the covenant, and the owners of those allotments. Unless Mr. Graham or Mr. Mayor or the Association owns one of those allotments, the question of whether or not the covenant is modified or removed is not really any of their business. It is not a question of whether it may have interested themselves in the question, or whether they think it is fair or desirable. If they do not own one of the four allotments, then I think they lack "standing" to be a party and to participate in the application for review in relation to the proposed variation of the restrictive covenant. The expression "standing" means the legal right to participate.

70 Mr. Graham, Mr. Mayor and the Association are not parties to either of the other two proceedings.

71 Mr. Mayor, as honorary secretary of the Association, asks that his name and address be substituted as the address for service for the Association in relation to this proceeding. I will give a direction to that effect, but for the reasons stated above, I cannot see how he and Mr. Graham or the Association can participate further.

72 I think the correct disposition of this to adjourn each of these matters to an administrative mention 28 days after the date of this document. The parties are not required to attend on the date of the administrative mention. Rather they are to advise the Registrar in writing by that date whether either and which of the proceedings are to be withdrawn, whether any and what amendment will be sought to either remaining proceeding, whether any and what new proceedings are to be commenced in relation to these matters, whether a further hearing is required and whether the parties are ready, in that event, for such further hearing to be fixed.

_________________

RUSSELL BYARD

SENIOR MEMBER