1. The basis upon which costs are sought.
2. The amount and details of the costs claimed, including any itemised bills with invoices where relevant.
3. The basis on which the costs are calculated (for example, whether on a standard or indemnity basis, and whether on the County Court or Supreme Court scale. [Note that Rule 1.07 of the Victorian Civil and Administrative Tribunal Rules 2018 (Vic) fixes the default scale of costs.]
4. The reasons why costs should be awarded having regard to the provisions of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
5. A copy of any document relied upon in the costs application or supporting submissions.

If you make an application for costs in this proceeding, you may be required to pay an application fee. For more information, see the VCAT website.

1. By 4:00 pm on 24 November 2025, any party who wishes to oppose or otherwise respond to any application for costs must give to the Tribunal and the parties:
   1. Submissions which explain their position in respect of the costs application, including any basis on which they oppose the application; and
   2. A copy of any documents relied on in their submissions.
2. Unless varied by further order of the Tribunal, the hearing of any application for costs will be conducted 'on the papers' at 10:00 am on 18 December 2025. No attendance is required. If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences.
3. If a party objects to the application for costs being determined 'on the papers', they must advise the Tribunal and the parties of this by 4:00 pm on 11 December 2025 and provide reasons for their objection.
4. Any request for further or alternative procedural orders from the Tribunal must be made in writing and a copy must be given to all parties.

She tendered and relied on a statement of evidence dated 15 August 2025 prepared by her. Dr Kraal was not called to give evidence.

Matthew Townsend of Counsel, instructed by S & K Planning Lawyers

He tendered and relied on affidavits affirmed by Matthew John Klages on 9 May 2025 and 26 August 2025. Mr Klages was not called to give evidence

1. Charles Craig, Karen Tyers-Craig, Richard Nash, Diane Kraal, Francesa Calati and Enzo Calati ('applicants')[3] have requested in an application that the Tribunal cancel permit P967/2022 ('permit') issued by Banyule City Council ('Council') under the Banyule Planning Scheme ('planning scheme') on 8 December 2022.
2. The permit allows '[v]ariation to covenant 939046'. Condition 1 of the permit provides:

Unless otherwise agreed in writing by the Responsible Authority, Covenant 939046 registered on Lot 101 of Plan of Subdivision 006957 Volume 04426 Folio 107 shall be amended to delete the following expression:

... nor that there be any time be or suffered on the said lot hereby transferred more than one building and that roofed with tiles or slates ...

1. Covenant 939046 ('covenant') burdens the subject land. Mathew Klages and Vanessa Currie ('respondents') are the owners of the subject land. On or around 18 August 2022, they applied for the permit.
2. In accordance with Tribunal orders:

(a) The parties filed an agreed statement of facts comprising 11 pages and 30 paragraphs ('agreed facts'). I will not reproduce those facts in these reasons, but will make reference to them where necessary in setting out my findings.

(b) The parties filed five agreed questions of law.

1. At the start of the hearing, the applicants applied to amend the application. The applicants originally requested cancellation of the permit. The effect of its cancellation would have been to not allow any variation to the covenant.
2. The second part of the deleted expression in condition 1 was that the building must be 'roofed with tiles or slates' ('roof materials restriction').
3. The applicants submitted that they now do not seek, in effect, the restoration of the roof materials restriction. The applicants continue to seek restoration of the first part of the expression in the covenant, being the 'one building' restriction ('single building restriction'). Accordingly, they applied to amend the application to seek amendment (and not cancellation) of the permit to modify condition 1 so that the deletion was confined to the roof materials restriction. In other words, the applicants sought removal of expression relating to the single building restriction from condition 1 of the permit.
4. There was no consideration or agreement at the hearing as to the drafting of the requested amendment of the permit but it is consistent with the applicants' requested amendment of the application that condition 1 of the permit be amended so that the covenant is amended to only delete the words:

1. The applicants contended the Tribunal is not precluded from cancelling or amending the permit having regard to the questions of law and that the permit should be amended having regard to the grounds of failure to give notice,[4] material mistake,[5] material mis-statement.[6]
2. I have had the benefit of the parties' detailed written submissions, the witness statements and oral argument.
3. My ultimate finding is that the permit cannot be cancelled or amended having regard to my answers to the questions of law. My answer to question 1 is that the applicants do not have standing to make the request. It is therefore unnecessary to consider the merits of the request.

1. The covenant was created by instrument of transfer 939046 on 16 March 1920. It was in favour of the transferor, his heirs, executors and administrators and transferees and registered proprietor or proprietors for the time being of any other lot or lots on the plan of subdivision.[7]
2. The plan of subdivision contains 120 lots and is known as the 'Glenard Estate' ('estate'). The estate is listed by Heritage Victoria as being of 'historical and aesthetic significance to the State of Victoria' for distinctive planning. The estate was designed by Walter Burley Griffin and Marion Mahony Griffin. The statement says the estate shares many attributes with the nearby Mount Eagle Estate.
3. Before the covenant was varied, it contained 810 words and I will not reproduce it here. Parsed, the covenant required that, in respect of the subject land:[8]

(a) no shop laundry factory business establishment almshouse or charitable institution shall be erected;

(b) no building erected or existing shall be used as a shop laundry factory business establishment almshouse or charitable institution;

(c) no more than one building is permitted;[9]

(d) the building must not be roofed other than with tiles or slates;[10]

(e) the building shall not cost less than the sum of five hundred pounds; and

(f) no live-stock shall be brought or suffered on the Land unless the Land has been enclosed with a substantial fence.

1. After the issue of the permit, the respondents prepared a plan of variation of restriction. This plan was registered on 30 June 2023.
2. After registration of the plan of variation of restriction, the respondents lodged an application with the Council to develop the land for two dwellings. After the giving of notice and considering objections (by some of the applicants and others), the Council refused permission. The respondents have applied to the Tribunal to review that decision.
3. The Tribunal has listed that proceeding to be heard on 24 November 2025. The respondents have applied to amend the permit application and the Council has now decided to support the grant of a permit in respect of the amended plans subject to notice of the application to amend the permit application being given to those originally notified.

Was the Responsible Authority required by section 52 of the Planning and Environment Act 1987 (Vic) to give notice of the application for permit 967/2022?

1. This question may be reduced to one of standing. In short, if there was a requirement to give notice of the permit application to the applicants, the applicants have standing to request cancellation or amendment of the permit.
2. The applicants claim they have standing because each of them would have been entitled to object to the issue of the permit, should have been given notice of the application for permit and were not given that notice.[11]
3. The applicants, other than Diane Kraal, are owners of land that have the benefit of the covenant.[12]
4. Each of the applicants are owners or occupiers of land benefited by the covenant for the purposes of notice under section 52(1)(cb) of the Planning and Environment Act 1987 (Vic) ('PE Act').[13]
5. No notice of the application for permit was given.
6. The Council relies on the exemption from notice provided for in section 47(2) of the PE Act.
7. Section 47(2) provides:

Sections 52 and 55 do not apply to an application for a permit to remove a restriction (within the meaning of the Subdivision Act 1988) over land if the land has been used or developed for more than 2 years before the date of the application in a manner which would have been lawful under this Act but for the existence of the restriction.

1. The purpose of section 47(2) is to recognise the principle of acquiescence.[14] It is an exemption from notice provision and does not alter the considerations that are relevant in determining an application.[15]
2. The relevant exemption in this proceeding is from section 52 and not section 55.[16]
3. The substantive question raised by section 47(2) is whether the subject land has been used or developed for more than two years before 18 August 2022 in a manner which breached the covenant ('substantive question').
4. In short, if section 47(2) applies to the permit application, the applicants do not have standing to make a request under sections 87(3)(b) and 89(1) of the PE Act. If section 47(2) does apply to the permit application, the applicants would have standing to make a request. This is why I characterised question 1 as one of standing.
5. There is a threshold question about section 47(2). On its terms, it applies to an application to 'remove' a 'restriction' such as the covenant. It does not apply on its terms to an application to 'vary' a restriction.
6. In earlier Tribunal cases, section 47(2) was held to apply to both removal and variation.[17] More recently, in Alderman v Hume CC,[18] the Tribunal has held it only applies to removal.
7. The application form and the planning report attached to the application primarily referred to 'vary'. The Council officer's report was more ambiguous. At one point, it referred to the application seeking to 'remove' two 'aspects' or 'requirements' of the covenant (the single building restriction and the building materials restriction). At another point, it described the 'proposal' as a 'variation' and ultimately recommended 'variation'.
8. The permit allows 'variation' to the covenant. Condition 1 of the permit refers to 'amendment' of the covenant. The subsequent registration added the following line to the 'encumbrances, caveats and notices' in the title to the subject land:

Covenant 0939046 - Variation of Covenant AW999658D 30/06/2023

1. Therefore, as a matter of form, it might be said the application was to vary the covenant.
2. However, I would give greater weight to the substance of what was proposed in the application and granted by the permit.
3. A restrictive covenant must contain one or more restrictions. I have already referred to the parties' agreement about what are the six restrictions in the covenant, two of which are the single building restriction and the roof materials restriction.
4. The application for permit and the permit, in substance, proposed and allowed the 'removal' of the single building restriction and the roof materials restriction. I would distinguish the more recent Tribunal decision in Alderman v Hume CC[19] that narrowed the application of section 47(2) to variation because the text of relevant 'building height' restriction in that case was proposed to be varied and not removed.[20]
5. I would therefore characterise the application for permit as an application to remove a restriction (in fact, two restrictions) and that section 47(2) applies to the application.
6. I now move to the substantive question. What exactly is the meaning of the single building restriction?
7. The starting point for this question is to apply the established construction principles of the relevant words of the covenant.
8. Once the meaning is found, I will then apply the principles to the physical characteristics or physical context of the subject land to determine, as a question of fact, if there has been a breach of the single building restriction.
9. The parties referred me to many of the relevant court authorities on construction of covenants.[21] It suffices to find that there was no real dispute that the summary of those principles in Clare & Ors v Bedelis[22] are apposite and helpful. I adopt those principles.
10. In construing the single building restriction, I will have regard to text, context and purpose.
11. In relation to text, there is no real dispute that:

(a) by 'single', a reasonable person in the position of the transferor or transferee would have meant the number 'one'; and

(b) by 'building', a reasonable person in the position of the transferor or transferee would not have meant 'dwelling' or 'house' but would have meant the broader and then ordinary (non-technical) meaning of, effectively, a substantial structure with walls and a roof.

1. This meaning is supported by consideration of context. The context cannot include extrinsic and later documents, such what was the Griffins' 'vision' for the estate. Context can include considering what restrictions are not included in the covenant. For example, the covenant:

(a) does not restrict the number of dwellings, provided they are within one building;

(b) does not restrict the size, shape or architectural expression of the building;

(c) does not differentiate between a main building and a subsidiary building and therefore a detached garage, for example, together with a main building would be restricted;

(d) does not restrict the use of the building beyond the six uses specifically restricted;

(e) does not restrict the keeping of livestock once the subject land is enclosed with a substantial fence;

(f) does not restrict demolition of the building; and

(g) does not restrict structures other than building, such as carports or gazebos of any dimension or location on the subject land.

1. The lots in the estate had a generous size, including the subject land.[23] The expectation by a reasonable person in the position of the transferor or transferee in 1920 would be that the single building on the subject land would be more likely than not to be a detached dwelling.
2. Accordingly, I would construe the purpose of the covenant was to support the creation of generous space around the building on its lot. To the extent that a similar restriction is included in covenants burdening other lots in the estate, the combined purpose would be to create an estate with generous space between buildings.[24]
3. I now turn to the question of fact of whether the physical context of (or the physical characteristics of, or the 'improvements' to) the subject land constitute one 'building' (as claimed by the applicants and hence no breach of the single building restriction) or two 'buildings' (as claimed by the Council and the respondents and hence a breach of the single building restriction).
4. The parties agree that the improvements are a part single-storey and part double-storey 'structure' (I will use that more neutral description at this point) designed for residential use containing in total six bedrooms, two secure entryways, two kitchens, two bathrooms, two living areas and a laundry.[25] The structure facilitates use as separate dwellings.[26] No relevant modifications were made to the structure in the two years before the permit application was lodged.[27]
5. The critical feature of the structure is that it comprises what may be described as two wings or parts joined or connected by a glazed breezeway or passage ('connection').

Figure 1 - Floor plan. Source: Agreed facts [29].

1. Figure 1 shows the location and relative dimensions of the connection.

Figure 2 - Image looking west at the connection. Source: Agreed facts [29]

1. Figure 2 shows the modest dimensions of the connection and that its roof sits below the eaves of the two parts of the structure.

Figure 3 - Roof of the western part of the structure. Source: Agreed facts [29]

1. Figure 3 is a view above the single storey parts of the structure. The double-storey part is to the right and outside the image. The view faces west. The connection is out of direct view but is below and between the yellow-roofed part of the structure and the green-roofed part of the structure.
2. In Callaghan George Associates Pty Ltd v Monash CC[28] ('Callaghan'), the Tribunal said the nature and degree of the connection and of the form of the structures to which the connection joins are relevant to determining whether the connection is between one building or more than one building.[29]
3. In Callaghan, the Tribunal referred to the subterranean link under Little Bourke Street between the Myer Bourke Street store and the Myer Lonsdale Street store and to the skybridge across Lonsdale Street between the Myer Lonsdale Street store and Melbourne Central. The Tribunal said they were examples of modest connections between likely separate buildings.
4. In this proceeding, I make the following findings of fact from all the material that is before me:

(a) The eastern part of the structure was built many years (about 50 years) before the western part of the structure.

(b) The two parts of the structure has a different appearance.

(c) The two parts were designed by different people and to be used either separately or together.

(d) The two parts have different and separate roofs.

(e) The two parts have separate entrances in addition to an external entrance into the connection.

(f) The connection has no structural function to the two parts of the structure.

(g) The connection is modest in terms of height, floor area, form and function and is largely indiscernible from the street.

1. I therefore find as a question of fact that the subject land contains two buildings both now and for more than two years before the permit application was lodged and this constitutes a breach of the single building restriction.
2. Dr Kraal tendered an unreported decision of the former Administrative Appeals Tribunal of Victoria dated 15 August 1994 in which a L Barichello appealed the City of Heidelberg's decision to refuse permission to construct 'a three bedroom dwelling linked by double garages to an existing dwelling' on a lot in the estate. The lot was burdened by a covenant with a similar single building restriction.
3. The Tribunal ultimately found that the restriction would not be breached because, in essence, a layperson passing the development would say there was one building. I am not bound by the finding of fact in that case. I would make a different finding of fact in the circumstance of this case, for the reasons to which I have now referred.
4. The final matter in section 47(2) is whether the two buildings have 'been lawful under this Act but for the existence of the restriction'. There is no evidence and no party claimed that the construction of the two buildings was otherwise unlawful.
5. Accordingly, section 47(2) applied to the permit application. The permit application was exempt from section 52 notice to the applicants. That was what the Council decided. In making this finding I am not reviewing the Council's finding.[30] The PE Act does not provide for a person to review a responsible authority's finding under section 47(2). The correct legal analysis is whether the Council reasonably formed the view that section 47(2) applied to the permit application in making a decision on a relevant permit application. I find that it did.
6. In conclusion, if section 47(2) applied, notice of the permit application was exempt and the applicants were not entitled to notice. The answer to question 1 is 'no'. The applicants therefore do not have standing under sections 87 and 89 to request amendment of the permit.

For the purposes of section 88 of the Planning and Environment Act 1987 (Vic), does permit P967/2022:

(a) relate to the construction of buildings, or the carrying out of other work or the development of land; or

(b) relate to the use of land?

1. If the applicants do not have standing to request amendment of the permit, the other questions of law are moot. However, if I am wrong about question 1, I should answer the other questions. I will do so in relatively short form.
2. Section 88 of the PE Act imposes limits on the Tribunal's power to cancel or amend a permit. It provides:

What are the limits on the power to cancel or amend a permit?

The power to cancel or amend a permit under section 87 may be exercised -

(a) if the permit relates to the construction of buildings or the carrying out of other works, at any time before those operations have been completed; or

(b) if the permit relates to any other development of land, at any time before that development is substantially carried out; or

(c) at any time, if the permit relates to the use of land.

1. Question 2 asks if the permit relates to paragraphs (a) and (b) of section 88 or whether it relates to paragraph (c) of section 88.
2. The permit was required under clause 52.02 of the planning scheme. That clause provides that:

A permit is required before a person proceeds ... under section 23 of the Subdivision Act 1988 to create, vary or remove an easement or restriction ...

1. Having regard to the legislative power for that clause,[31] the definition of 'restriction',[32] and the provision of section 23 of the Subdivision Act 1988 (Vic), I am satisfied that for legal and practical purposes there is no distinction between the creation, removal or variation of an easement or a restrictive covenant.
2. It is also relevant to recall that a restriction and an easement are both either an estate or interest in land and the definition of land for the purposes of the planning scheme includes an estate or interest in land.[33]
3. The Supreme Court's decision in Skabal Pty Ltd v Boroondara City Council[34] (Skabal) is therefore relevant. In Skabal, the Court considered the scope and effect of section 88 in the context of a permit issued under clause 52.02 allowing, in effect, removal of an easement.
4. The Court held that the permit related to 'any other development of land' and that the development was 'substantially carried out' when the plan of variation of easement had been registered. The Court expressly disagreed with the appellant that the permit related to the use of land and that therefore the Tribunal could cancel or amend the permit at any time.[35]
5. I am bound by the Supreme Court's reasoning.
6. I disagree with the applicants' contentions that Skabal must be distinguished on its facts and that a permit that restricts the number of buildings relates to how the land may be used. There is no such relationship that is relevant for section 88 purposes. It conflicts with the fact that the covenant contains use restrictions.
7. The applicants contend I am not bound by Skabal because the Court's reasoning was 'hesitant' when it found what was the 'better view' of the meaning and effect of section 88. It suffices to state I do not construe the Court's reasoning as hesitant.
8. If I am not persuaded to distinguish Skabal on its facts, the applicants submit that Skabal is wrongly decided to the extent that it holds there is power under section 88(b) to cancel or amend a permit allowing removal or variation of a covenant.
9. The applicants rely on what they contend is the legislative history of section 88. This reliance is without merit because the Court considered legislative history.[36] I also obviously have no authority to rule that Skabal was wrongly decided.
10. At the hearing, the applicants said that if were minded to not distinguish Skabal, they apply under section 96(1) of the Victorian Civil and Administrative Tribunal 1998 (Vic) ('VCAT Act') to refer a question of law about the correct construction of section 88 of the PE Act in the circumstances of this proceeding to the Trial Division of the Supreme Court.
11. Section 96 empowers the Tribunal, with the consent of the President, to refer any question of law in a proceeding to the Trial Division of the Supreme Court or the Court of Appeal. The referral procedure is an exceptional one, rarely used in planning proceedings. Although section 96 is broadly expressed, it would normally be employed if some 'novel or very difficult question arose' which caused the Tribunal a real difficulty in determining a proceeding.[37]
12. In my opinion, the question is neither novel nor difficult. The Court has pronounced on the question in circumstances that do not warrant distinguishing.
13. The answer to question 2 is that for the purposes of section 88 of the PE Act, permit P967/2022 relates to the construction of buildings, or the carrying out of other work or the development of land.

Does the Tribunal have power in this proceeding pursuant to section 103(1AA) of the Transfer of Land Act 1958 (Vic) to direct the Registrar of Titles to amend the title of the subject land to restore the Single Building Restriction to the Covenant?

1. Question 3 is also moot having regard to the answer to question 1.

1. Section 103(1AA) provides:

103 General provision as to correction of errors etc.

...

(1AA) In any proceeding in VCAT relating to land or any instrument or dealing in respect of land, if VCAT directs the Registrar to make any amendment to the Register or otherwise to do any act or make any recordings necessary to give effect to an order of VCAT, the Registrar must obey that direction.

1. Section 103(1AA) is what may be described as a 'facilitating or consequential provision' once jurisdiction is established.[38] The parties disagree as to whether jurisdiction is established.
2. The applicants contend section 87 of the PE Act founds jurisdiction. I prefer the view expressed by the Tribunal in Ingram v McLennan and Associates Pty Ltd[39] that section 103(1AA) does not confer a separate or general jurisdiction for the Tribunal and that the Tribunal only has jurisdiction in a proceeding if the Tribunal has the power to direct the Registrar.[40]
3. This proceeding is a request by persons under section 89 of the PE Act who claim they were entitled to notice of the permit application and were not given notice and who rely on specified grounds under section 87(1) of the PE Act.
4. In a section 87 application, the PE Act specifies that the Tribunal may 'direct' the responsible authority to cancel or amend a permit and to 'take any action required in relation to the permit' and that the responsible authority must comply with these directions.[41] It does not empower the Tribunal to direct the Registrar.
5. The answer to question 3 is 'no'.

Is permit P967/2022 'spent' because plan of variation of restriction AW999658D, which deleted the Single Building Restriction, was registered on 30 June 2023?

1. Question 4 is also moot having regard to the answer to question 1.

1. The applicants submit the permit is not spent because, in summary:

(a) the 'concept' of a spent permit is not one that the PE Act applies to covenants;

(b) the permit has 'ongoing effect as the source of authority for the [varied] covenant which continues to govern the use of the land'; and

(c) the permit is the 'root' of the 'ongoing and unresolved development application'.[42]

1. I am not persuaded by these submissions.
2. The question has also been considered at both the Tribunal level and the Court level in Skabal. The Tribunal held that a permit to vary an easement is spent if a plan of variation of easement is registered and the permit cannot be cancelled or amended.[43] The Supreme Court considered whether the Tribunal was correct in finding the permit spent and beyond the Tribunal's to cancel or amend.
3. The Court, in a lengthy and careful analysis, agreed with the Tribunal that the permit was spent upon registration of the plan because the development the permit allowed was then substantially carried out.[44]
4. Again, there is no warrant to distinguish a permit relating to an easement from that relating to a covenant, for the reasons I have already stated.
5. The answer to question 4 is 'yes'.

If yes, is the Tribunal precluded from cancelling permit P967/2022?

1. Question 5 is also moot having regard to the answer to question 1.
2. If question 5 is directed to whether the Tribunal has the power to amend a 'spent' permit, the answer is 'yes', on the authority of the Court in Skabal.

1. As I have stated, the applicants submit the Tribunal has the power to amend the permit in the manner sought and to direct the Registrar to amend the Register to give effect to a Tribunal order to vary the covenant. If the permit was amended and the Register was amended, the single building restriction in the covenant would be restored.
2. The applicants submit the permit should be amended having regard to, as I have stated, the grounds of failure to give notice, material mistake, material mis-statement.
3. It is unnecessary to consider and make findings on these grounds having regard to the answers to the questions of law.
4. However, as the parties made their submissions about these grounds and the hearing was a final hearing on the request, I will indicate my observations in short form.
5. The cancellation or amendment of a permit on a request by a person under section 89 of the PE Act has been often described as a 'serious matter'. The PE Act includes what have been described as hurdles over each of which a requester must jump before the Tribunal could cancel or amend a permit.

1. In support of the applicants' ground that they should have been given notice of the permit application to vary the covenant, the applicants refer to:

In determining a request, the Tribunal must take into account the matters set out in section 84B(2) as if the request were an application for review.[45]

In determining an application for review under this Act, in addition to matters referred to in subsection (1), the Tribunal:

...

(f) must (where appropriate) take account of the extent to which persons residing or owning land in the vicinity of the land which is the subject of the application for review were able to and in fact did participate in the procedures required to be followed under this Act before the responsible authority could make a decision in respect of the application for a permit.

1. The qualifier in section 84B(2)(f) to take account of those matters 'where appropriate' is an important one. The 'procedures to be followed under this Act' as set out in section 52 of the Act are exempt in the circumstances of section 47(2) of the Act. Section 84B(2)(f) does not in any way override the effect of section 47(2).

1. The applicants put much effort into the ground of material mistake in relation to the grant of the permit.
2. The applicants submit a proper reading of the Council officer's report ('report') shows that the Council misread the covenant by construing it as a single 'dwelling' restriction.[46]
3. By construing it as a single 'dwelling' restriction, the applicants submit the Council failed to properly construe it as a single 'building' restriction that had not been breached for more than two years before the permit application was lodged. Consequently, the applicants contend the Council fell into error in applying section 47(2) and in not requiring notice to be given to the applicants and others specified in section 52 of the PE Act.
4. The applicants are correct in stating that the report refers to the material accompanying the permit application as demonstrating the existing development as two dwellings. There was a reasonable basis for the Council forming this opinion.
5. The Council had the benefit of legal advice prepared on behalf of the respondents ('legal advice') that correctly referred to the effect of the single building restriction:

... the Single Building Restriction prohibits more than one building being constructed on the Land. However, the Land currently consists of two attached dwellings.

1. The legal advice then referred to the two possible conclusions as to breach of the single building restriction:

This leads to two possible conclusions:

(a) the two dwellings are permissible under the Covenant on the basis that, though separate dwellings, consist of a singular building; or

(b) the two dwellings constitute a breach of the Covenant.

1. The 'possible conclusions' in the legal advice do not amount to clear advice that the single building restriction has been breached.
2. The report did not construe the covenant as including a single dwelling restriction. Two passages in the report support this conclusion.
3. In the first passage, the report states:

The proposed variation to the covenant will not transform what is currently permitted for use for the construction of a building on the land. The proposed variation will allow for continued use of two (2) buildings (dwellings) on site ...

1. A fair reading of this passage is that the covenant does not allow more than one building and that there are two buildings on the land that are currently used as dwellings. That the buildings are currently used as dwellings is not necessary to determining if there is a breach, other than confirming the breach is not in relation to the use restrictions in the covenant.
2. In the second passage, the report's 'summary' states:

The application seeks approval to vary aspects of Covenant 939046 to remove the requirement limiting only one building be permitted on the land and that a building must be limited to roof construction of either tiles or slate.

1. This passage correctly refers to the single building restriction and does not refer to it as a single dwelling restriction.
2. In my opinion, the applicants would have difficulty in proving a material mistake. They would have to be able to prove that the Council would have made a different decision if it had known the true situation. Proving that the Council had not known the true situation would be the first difficulty. The next difficulty would be to show that the Council incorrectly decided that section 47(2) applied and that no notice was required to be given to the applicants and other owners and occupiers of land benefited by the covenant.
3. As shown by the answer to question 1, the Council made the correct decision about section 47(2). Even if the applicants could prove a mistake (which I would doubt), proving it was material would be an added difficulty. The authorities regularly show that the ground of material mistake is a high bar.[47]
4. Even if the applicants could prove a mistake and that it was material, their next difficulty would be proving they were adversely affected by the mistake and had suffered substantial disadvantage.[48]
5. Disadvantage must be 'substantial'. For example, the mere loss of an opportunity to object to the Council against the grant of the permit would, alone, be unlikely to be sufficient.[49]
6. The applicants did not advance their case based on the consequences of removal of the single building restriction. The 'as is' and 'after' consequences are normally taken into account by the decision maker.
7. In the absence of a permit application to develop the subject land when determining the application for permission to vary the covenant, the Council should have assessed the possible consequences of removing the single building restriction.
8. The respondents sought and obtained permission to remove the single building restriction. That would mean that the erection of any number of buildings would not result in a breach of the varied covenant. The report did not appear to consider the effect of that consequence. The respondents could have sought variation of the single building restriction so that it restricted more than two (or another specified number of) buildings, but chose not to do so.
9. While this is a factor that might have assisted the applicants if they had advanced it, it might not have been enough to prove substantial disadvantage.
10. First, any disadvantage could be mitigated by analysing the consequences of not amending the permit and not restoring the covenant.
11. I have already referred to what might be seen as the limited impact of the covenant in the sense of identifying what the covenant does not restrict. At the hearing, the applicants referred to the consequences of additional residents upon the rights to use the park within the estate (known as 'Homestead Park') for recreation and for passage, including by vehicles.
12. These consequences are uncertain. But the main difficulty for the applicants would be that the covenant does not restrict the number of dwellings in one building (if the single building restriction were restored by amendment of the permit and further variation to the covenant on title) and hence does not restrict numbers of residents.
13. Second, the 'as is' and 'after' analysis is done on the basis of the effect of current planning scheme.[50] Even though the removal of the single building restriction might be seen as opening the door to the erection of many buildings, the planning scheme would in its policies and controls create difficulties in succeeding in obtaining permission to construct multiple buildings.
14. Third, even though the respondents did not lodge a permit application to develop the land at the same time as lodging the permit application to vary the covenant, that application has now been lodged. Notice of it has been given. Some of the applicants objected. The Council's decision on that permit application is now before the Tribunal on review. The applicants are also now participating in the way envisaged under section 84B(2)(f) of the PE Act. The amended plans now before the Tribunal could also be taken into account in an 'as is' and 'after' analysis.

1. The applicants claim they have been adversely affected by a material mis-statement in relation to the application for the permit.
2. The claimed mis-statement is that the permit application, taken as a whole, 'misdescribed' the nature of the covenant as restricting the number of 'dwellings' and that the Council 'was led into error' through the respondents' planning report focus on there being two dwellings.
3. I agree with the applicants that this was the focus of the planning report. I also agree that the legal advice could be characterised as tentative or ambiguous. The applicants claim the planning report and legal advice never clearly told the Council that there were two buildings and therefore a breach of the single building restriction.
4. The applicants would need to prove that the correct characterisation of the relevant permit application materials were mis-statements. The focus on the existence of two dwellings could be characterised as 'irrelevant' rather than a 'mis-statement'.
5. I have doubts that the applicants could also prove the Council was led into error because (as I have said) I doubt the Council made a material mistake. In other words, even if the permit application, taken as a whole, was unclear about the effect of the single building restriction and therefore the nature of any breach, the Council formed its own correct view of these matters.
6. The applicants would also need to prove they were adversely affected and had been substantially disadvantaged by the mis-statement.

1. Even if one of the applicants' three grounds could be made out, the Tribunal may refuse to consider a request unless it is satisfied the request has been made 'as soon as practicable' after the person making it 'had notice of the facts relied upon in support of the request'.[51]
2. The applicants submit that they had notice of the facts in support of their request on 15 November 2024.
3. I have previously held that 'as soon as practicable' means 'as soon as feasible' in the circumstances of the case and this includes time to consider whether a request should be made and to seek advice.[52]
4. I have also previously held that if a request is made by two or more people, the obligation to make the request as soon as practicable applies to each of them and the Tribunal may refuse to consider the request if one of them has not acted as soon as practicable.[53]
5. The applicants relied on a 3-page document setting out a chronological summary headed 'timeline' of about 30 events relevant to their making the request. The timeline was prepared by Mr Harrison of the Eaglemont Neighbourhood Conservation Association Inc ('ENCA'). Mr Harrison was at the hearing as an observer and he told me that he regularly scans the Council's website list of 'advertised' permit applications looking for relevant permit applications, especially those for land in the estate.
6. The respondents' permit application to vary the covenant did not appear on the website and come to Mr Harrison's attention because it was not advertised.
7. Mr Harrison was unaware that a responsible authority must keep a register of all permit applications and that the register must be made available in accordance with the 'public availability requirements'.[54]

1. The key events in the timeline may be summarised as follows:

(a) On 16 August 2024, Mr Harrison saw on the Council's website the respondents' advertised application to develop the subject land. He saw among the application documents a title extract to the subject land which showed a variation of covenant had been registered on 30 June 2023. He then notified Dr Kraal, a committee member of the Homestead Park Association Inc ('HPA'), about the application and the title.

(b) On 22 August 2024, the Council told Mr Harrison that it had granted permission to vary the covenant and the application had not been advertised on the website because section 47(2) of the PE Act applied.

(c) On 27 August 2024, on Mr Harrison's request, the Council released the officer's report.

(d) On 29 August 2024, Mr Harrison (at the request of the Council) lodged an FOI request for application documents.

(e) On 30 August 2024, representatives of the ENCA and the HPA, met with Council staff to obtain more information about the respondents' applications for permission to vary the covenant and to develop the land.

(f) On 15 November 2024, the Council released documents under FOI to the ENCA.

(g) On 6 January 2025, objectors to the application for permission to develop the land were notified of the respondents' application to the Tribunal to review the Council's decision to refuse permission. According to the list of objectors, they included Dr Kraal, Mr Craig, the ENCA, Mr Calati and Ms Calati.

(h) On 28 February 2025, the Tribunal struck out statements of grounds or specified grounds filed by some objectors (not including any of applicants in this proceeding).

(i) On 1 April 2025, HPA lodged this request to cancel the permit.

(a) On or soon after 30 September 2024 those of the applicants who had objected to the respondents' application to develop the subject land were notified of the Council's decision to refuse permission.

(b) On 22 January 2025, Dr Kraal, Mr Craig, Mr Calati and Ms Calati filed a joint statement intending to participate in any hearing of the application to review the Council's decision to refuse permission to develop the subject land.

(c) On 22 May 2025, I substituted the applicants for the HPA in this proceeding.

1. On 27 August 2024 Dr Kraal was made aware of the permit and why no notice of the permit application was given when she obtained a copy of the officer's report.
2. Dr Kraal took no action on deciding whether to lodge a request to cancel the permit until she had received copies of the permit application documents via the ENCA's FOI request.
3. I therefore observe that Dr Kraal did not have notice of the permit application documents until 15 November 2024 and therefore did not have all the facts on which the HPA would ultimately rely until that date.
4. Whether the request was made as soon as practicable therefore reduces to whether it was feasible to lodge the request any earlier than 1 April 2025 ie whether the four and a half months delay was unreasonable.
5. At the hearing, Dr Kraal relied on personal or health issues that she said caused her and Ms Calati delay in late 2024. It is unclear when those issues abated. She also relied on the need to obtain legal advice but it is unclear when Mr Willis' advice was sought. Mr Willis ultimately prepared the statement of grounds on which the HPA attached to its request.
6. Dr Kraal did not provide any reason for delay in making the request by the other four applicants. It is unclear how actively involved the other four were in considering and deciding to lodge the HPA's request.
7. It is a factor that, until 22 May 2025, the HPA was the requester. Dr Kraal and Ms Calati were committee members of the HPA and it appears the HPA gave them (expressly or impliedly) authority to act for the HPA in this matter at all relevant times until 22 May 2025. It is therefore uncertain when the other four applicants had notice of the relevant facts.
8. At the hearing, Dr Kraal also conceded that the HPA effectively stopped considering a possible request between 30 September 2025 and 6 January 2025. The reason for stopping that consideration was a belief that the Council's refusal of the development application ended the respondents' proposal in that application.
9. Dr Kraal said on 6 January 2025 she and the HPA realised the error of that belief when receiving notice that the respondents had applied to the Tribunal to review the refusal.
10. This three month period in which the request was not further considered would count against the applicants. Then there was another three month period before the request was lodged. The time and effort needed by the applicants (or, to be more precise, the four of them that were parties) to participate in the early phases of the development application proceeding might be relevant considerations in determining whether it was feasible to lodge the request before 1 April 2025.
11. Other factors that would be relevant include the Christmas/New Year holiday period; when Mr Willis was briefed; and when he was able to advise the applicants.
12. The applicants would need to be able to distinguish the Tribunal decision in Tate v Wellington SC,[55] in which the Tribunal found that a 14 week delay after 'finding out about the permit' before lodging a request was not acting as soon as practicable. In that case, the applicants knew they had not received notice well before seeking and obtaining more documents under FOI.
13. In conclusion, there are many factors that would need to be weighed to determine if the applicants lodged the request as soon as practicable after the first of them got notice of the facts. On the material before me, I would not make a finding about that, particularly as it is unnecessary to do so.

1. Even if the applicants could prove one of the grounds of notice, mistake or mis-statement, there is a final hurdle of whether it would be 'just and fair' to amend the permit.[56]
2. In considering whether it would be just and fair, the Tribunal has in the past given weight to the principle that cancelling a permit is a serious matter because cancellation tends to undermine the certainty of permits and persons acting in accordance with them.
3. This principle is apt in this proceeding because, even though the applicants subsequently amended their request from cancelling the permit to amending the permit, the requested restoration of the single building restriction is, in substance, akin to a cancellation.
4. In any event, considering whether it would be just and fair to cancel or amend a permit 'enables the Tribunal to step back and take an overview of where the balance of fairness and justice' and the position of both the applicants and the respondent permit holders lies.[57]
5. The applicants rely on principles of what they say is 'general application', being the 'public interest in the right of objection in the planning system'. They claim that the Court has said that participation in planning processes, including permit applications, is generally encouraged and facilitated by the [PE Act]'.[58]
6. These principles need to be viewed in the context of the legislature exempting an application from notice requirement in the circumstances set in section 47(2) of the PE Act. In those circumstances, a responsible authority is not required to consider an objection, if one is received from a person who otherwise becomes aware of an application.[59] The circumstances are a legislated departure from the applicants' so-called 'general principle' and from the encouragement of participation.
7. The applicants also rely on a claim that the covenant is a 'central feature of the Glenard Estate', has been in place for over 100 years and has been 'widely observed and highly valued for the contribution it makes to the far-sighted planning principles of the original developer, Peter Keam, and the designers, Walter Burley Griffin and Marion Mahoney Griffin'.
8. This claim carries little weight. Even if the applicants could prove the single building restriction is part of a building scheme in the estate, the Council's and respondents' submissions with images of many lots with separate outbuildings left me doubting that it had been 'widely observed'.
9. Having regard to what the covenant does not restrict, the connection between the covenant and the developer's and designers' 'far-sighted planning principles', whatever they might be, is not as apparent as the applicants claim.
10. In weighing the position of the applicants and the permit holder, the permit holder has acted on the permit and obtained registration of the covenant variation. The permit holder has also taken steps to act in accordance with the covenant variation by preparing and lodging a permit application to develop the land in a way that it contends would not breach the varied covenant.
11. From my perusal of the amended plans filed by the respondents in the development application review, the Council would be likely to characterise the development as construction (or erection) of two buildings. If the applicants' request to amend the permit were to succeed (and if the variation of the covenant were further varied to restore the single building restriction), the Council would be statute barred from granting permission to develop the land in accordance with those plans.[60]
12. I doubt it would be just and fair to amend the permit, but it has been unnecessary to consider this factor in the detail that would be required if the answers to the questions of law had enlivened this and the other merits considerations.

1. The request is made in the Tribunal's original jurisdiction. If an application is made in that jurisdiction by a person who does not have standing to bring the application, the application (or request) is misconceived and may be summarily dismissed.[61]

1. For these reasons, I will dismiss the applicants' request to amend the permit.
2. The Council and the respondents have foreshadowed an intention to seek an order that the applicants pay their costs. I will make appropriate procedural orders for the making of and consideration of any costs application.

[1] Dr Kraal said that the applicants had briefed Peter Willis SC to prepare written submissions and appear. Mr Willis authored the applicants' written submissions but Dr Kraal said he became unavailable shortly before the hearing. Mr Willis assisted Dr Kraal in providing notes for the applicants' oral submissions.

[2] The written and oral submissions and evidence of the parties and the documents they tendered, (including those in the filed Tribunal Book) have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Homestead Park Association Inc was the original applicant. In orders dated 22 May 2025, the Tribunal substituted the six individuals for the Association.

[4] Planning and Environment Act 1987 (Vic) s 89(1)(a) ('PE Act').

[8] This summary, with minor editorial modification here, is in the Agreed Facts at [9].

[9] The 'single building restriction' to which I have referred.

[10] The 'roof materials restriction' to which I have referred.

[14] Hill v Campaspe SC [2004] VCAT 1456 [23].

[15] Alderman v Hume CC [2024] VCAT 737 ('Alderman') [70].

[16] In the Tribunal's order dated 22 May 2025, I ruled that Heritage Victoria was not a referral authority and therefore there was no obligation under section 55 of the PE Act.

[17] See eg Pagrati Pty Ltd v City of Boroondara (1996) 16 AATR 345; Hawley v Yarra Ranges SC (2007) VCAT 2318 [26].

[18] [2024] VCAT 737.

[19] [2024] VCAT 737.

[21] I will not cite the many authorities on which the parties relied.

[22] [2016] VSC 381 [31].

[23] Which has an area of approximately 1,290 square metres.

[24] I hasten to add that I am not making any finding about whether there are covenants on other lots in the estate and whether they contain similar restrictions. There was some indication that this might be the case, but such a finding is not necessary to construe the covenant in this proceeding.

[28] [2005] VCAT 2737.

[30] A request to cancel or amend a permit is an application in the Tribunal's original jurisdiction and not its review jurisdiction. Original jurisdiction is 'invoked ... by a person who is entitled by or under an enabling enactment do so by applying to the Tribunal in accordance with section 67' - Victorian Civil and Administrative Tribunal 1998 (Vic) ('VCAT Act') s 43.

[32] Subdivision Act 1988 (Vic) s 3(1).

[34] [2020] VSC 532.

[35] Skabal [12], [51]. [53]-[59].

[37] Urban Consolidation and Development Pty Ltd v Commissioner of State Revenue [2010] VCAT 2124 [10]-[18].

[38] Ingram v McLennan and Associates Pty Ltd [2014] VCAT 133 [28] ('Ingram').

[39] [2014] VCAT 133 [28].

[42] That application being the respondents' separate application for permission to develop the subject land.

[43] Skabal Pty Ltd v Boroondara CC [2019] VCAT 1160 [25]-[29].

[46] The report by one of the Council's development planners is dated 13 September 2022 and an officer who is a delegate of the Council considered and decided to grant a permit on 8 December 2022. The reasons for the nearly 3 months delay between report and decision is unclear.

[47] See eg Moonee Valley CC v Smith [2007] VCAT 1816 [35].

[49] See eg Utber v Casey CC [2011] VCAT 2371 [41].

[50] Strathcona Baptist Girls School Limited v Boroondara CC [2024] VCAT 1162 [253g].

[52] Elliot v Stonnington CC [2020] VCAT 67 [64].

[53] Helman v Strathbogie SC [2021] VCAT 1274 [255]-[262].

[55] [2024] VCAT 423 [41].

[57] Utber v Casey CC [2011] VCAT 2371 [45]

[58] Boerkamp v The Hon Matthew Guy [2014] VSC 167 [49].