Ms T Acreman of Counsel instructed by J Halaliku of Apex Town Planning.

Variation of a registered restrictive covenant and development of two double storey dwellings on a lot (side by side).

Section 77 of the Planning and Environment Act 1987.

General Residential Zone (Schedule 2) and Vegetation Protection Overlay (Schedule 1).

32.08-4 Construction and extension of two or more dwellings on a lot and 52.02 Variation of of a restriction.

21.04, 22.01, 22.05, 32.01, 32.08 52.02, 55 and 65.

The subject land is located on the eastern side of Fairview Road, on the 'elbow' of the street bend as it curves towards Hillside Road.

The site has an area of 809 square metres and is irregularly shaped with a frontage of 15.10 metres and a rear width of 32.29 metres. The site has a deep fall of around 4.7 metres from west to east.

The site contains a double storey rendered brick house and a single driveway along the southern boundary. As a result of the significant slope, the dwelling presents as single storey to Fairview Road. A 2.4 metre wide drainage and sewerage easement extends along the entire rear eastern boundary.

Fairview Road contains a mixture of older post war housing stock and newer development.

Jacobs v Greig [1956] VicLawRp 92; [1956] VLR 597; Beman Pty Ltd v Boroondara CC [2013] VCAT 1249.

1. This is an application under section 77 of the Planning and Environment Act 1987 (Act) against a refusal by Monash City Council to grant a planning permit to construct two double storey dwellings and to vary a registered restrictive covenant which burdens the land at 44 Fairview Road, Mount Waverley.
2. The covenant requires any dwelling constructed on the land to be built out of brick or brick veneer and the Applicant proposes to construct the dwellings out of a mixture of brick and horizontal panel cladding. In the first instance, the Applicant contends that the development substantially complies with the requirements of the covenant but in the alternative it seeks a variation of the covenant to only require 60% of the building to be constructed out of brick or brick veneer.
3. The Responsible Authority received an objection from a beneficiary and as a result was not satisfied that the owners of benefiting land would be unlikely to suffer any detriment of any kind as a consequence of the variation. The Responsible Authority considers the design of the development to be inconsistent with the Garden City Character of Monash, particularly with respect to the inclusion of two vehicle crossings, the overall scale and bulk of the development and the extent of landscaping proposed for the site.
4. The primary issues for determination in this proceeding are:
   1. Does the development comply with the restrictive covenant; and if not
   2. Will the variation of the covenant be likely to cause the beneficiaries to suffer any detriment of any kind; and if not
   3. Do the planning merits of the proposal warrant approval.
5. Having considered all submissions presented, I have decided to set aside the decision of the Responsible Authority and direct a permit to issue. My reasons follow.

1. The subject land is burdened by the restrictive covenant set out in Transfer of Land C496594 and is dated 4 May 1966. The covenant prevents the registered proprietor from erecting on the subject land:

... any dwelling house constructed of other than brick or brick veneer....

1. The beneficiaries of the covenant are all the lots that were contained in Plan of Subdivision No LP 53821, other than the subject land. There are 76 beneficiaries and I was informed that notice of the variation application was provided to all the benefitting owners and occupiers in accordance with Sections 52(1)(cb) and 52(1AA) of the Planning and Environment Act 1987.
2. I accept Mr Acreman's submission that the covenant does not restrict the number of dwellings that may be constructed on the subject land. Both parties were in agreement that the covenant is a 'materials' covenant that merely restricts the types of materials that can be used in the construction of the development.

Does the development comply with the covenant?

1. Ms Acreman submits that the development complies with the covenant because a substantial proportion of the building will be constructed out of brick veneer. Drawing TP5 'Street Scape Elevations' shows that the lower level of the dwellings will be constructed out of brick veneer and the upper storeys will be constructed from horizontal panel cladding. The dividing wall between the two dwellings will also be brick. Ms Acreman informed me that the overall proportion of the development constructed from brick will be approximately 60% and submits that an ordinary person would read the building as being constructed substantially from brick.
2. Ms Acreman placed reliance on the Supreme Court's decision in Jacobs v Greig,[1] which similarly concerned a restrictive covenant that required a dwelling to be built from brick or stone. Justice Sholl held that the covenant would be satisfied if the main vertical structure of a dwelling was substantially constructed out of brick or stone. His Honour said:

In my judgement, the covenant should be read according to the construction contended for by the plaintiffs. It is not satisfied, I consider, unless the vertical construction of a building - and this applies to internal as well as to external walls - is substantially wholly of brick or stone, in the sense above stated. Of course, all such covenants, including this covenant, must be read as they would be understood by an ordinary person, accustomed to the ordinary current use of the English language in the relevant locality, and acquainted with current social habits and usages. No one would read this covenant as requiring that floors, stairs, rafters, or doors should be of brick or stone, or as essaying to interdict on the estate the otherwise common practice of using glass windows, metal or porcelain plumbing materials, or concrete or terrazzo flooring, or cement or plaster rendering over brick walls.[2]

1. Justice Scholl went on to find in that case that a brick veneer dwelling would be in breach of the covenant because the vertical structure of the dwelling was not 'substantially wholly' constructed out of brick or stone - the external walls were substantially constructed of wood with brick veneer on the outside.
2. In the present case, the covenant requires the dwellings to be constructed from brick or brick veneer. I note that brick veneer is only proposed for the lower levels of the dwellings and a considerable amount of the building will be constructed from horizontal panel cladding. Consequently I am not persuaded that the use of brick veneer amounts to a 'substantial' proportion of the main vertical structure. I find that the proposal will not comply with the restrictive covenant because only a portion of the building will be constructed from brick veneer. A substantial portion of the structure will also be horizontal panel cladding.
3. I also do not consider the external visual appearance of the materials to be relevant to assessing compliance with the covenant. What is critical is the construction method used to build the underlying vertical structure, which in this case must be brick or brick veneer. My interpretation is supported by the Tribunal's decision in Beman Pty Ltd v Boroondara CC[3]. In that case the Tribunal found that a building that included external zinc and aluminium cladding, render and metal screens complied with a 'brick or stone' covenant because the underlying building was to be constructed from solid brick. Senior Member Rickards said:

The use of zinc or aluminium cladding does not in anyway detract from the underlying compliance with the covenant that the building is constructed of solid brick. There is nothing within the covenant that indicates the building must be read as being constructed of brick. As stated in Jacobs 'decorative additions such as are frequently superimposed on the main vertical structure' can be used.[4]

1. Following from my findings, I do not consider that the proposal will comply with the terms of the covenant and unless I am persuaded to allow the variation of the covenant, I am obliged by Section 61(4) of the Act to refuse the application.

1. As already noted, in the alternative the Applicant seeks to vary the covenant to read as follows:

... any dwelling house constructed of not less than 60% brick or brick veneer (excluding roof forms, doors, windows and openings) ...

1. I note that because the restrictive covenant was created before 25 June 1991, the variation application must satisfy the requirements of Section 60(5) of Act. The Act requires the Tribunal to be satisfied that:
   • the owner of any land benefited by the restriction will be unlikely to suffer any detriment of any kind, including any perceived detriment, as a consequence of the removal or variation of the restriction; and
   • if a beneficiary of the covenant has objected to the grant of the permit, the objection is not vexatious or not made in good faith.
2. These requirements do not apply where a beneficiary has consented in writing to the removal or variation of the covenant. However I was informed by the Responsible Authority that none of the beneficiaries have consented.
3. The Responsible Authority received one objection to the variation application from Scott and Kristin Campbell of 30 Fairview Road Mount Waverley, who are beneficiaries to the covenant.[5] The Campbells state that the covenant was intended to preserve the streetscape of Fairview Road and provide certainty about the nature of allowable development. They purchased their property partly because of the covenant and they state that a variation would cause all beneficiaries to suffer detriment. They are concerned that the proposed changes do not seek to specify where the "60% brick or brick veneer" has to be utilised and would allow a development with a frontage constructed of external finishes other then brick.[6]
4. I do not share the Campbells' concerns about the changes proposed to the wording of the covenant. I have already found that the covenant does not actually require the development to appear as being substantially constructed of brick.[7] The covenant only requires the underlying vertical structure to be substantially constructed out of brick or brick veneer. The covenant already allows the external part of any building to be painted, rendered or externally clad with other finishes. The changes proposed to the covenant would merely allow 40% of the underlying vertical structure to be constructed out of a material other then brick or brick veneer. In my view, this would not result in any substantial or perceptible change when compared to what can presently be built on the subject land.[8]
5. In terms of the character of the covenant area, I note that the parties were unsure whether all or any of the benefitting properties included in the original subdivision were subject to the same materials covenant as the subject land. It was apparent from my inspection of the area that a substantial number of benefitting lots have been developed with dwellings that include upper stories constructed out of materials other then brick or brick veneer. These include upper stories constructed from weatherboard, metal cladding and in one instance wood cladding.[9] The question of whether these other dwellings are compliant with their covenant obligations (if any exist) is not a question before me.[10] However, it does suggest that the prevailing character of dwelling construction in the area of the original subdivision has not been entirely brick construction, which reinforces my finding that a variation of the covenant would not cause beneficiaries to suffer detriment as a result of any perceived changes to the streetscape.
6. With respect to the Campbells' assertion that they relied upon the existence of the covenant in their decision to purchase their property, I note that legislative provisions for the removal or modification of restrictive covenants have been in existence in Victoria for a very long time. As recently noted by the Supreme Court in Wong v McConville & Ors[11]:

The defendants' reliance on the existence of the Covenant in making their purchases brings with it, as a corollary, a necessary acceptance that the Covenant is subject to change where a modification will not substantially injure them in the enjoyment of their property.[12]

1. I am therefore satisfied that the modification of the covenant to only require 60% of the dwelling to be constructed from brick or brick veneer is unlikely to cause the Campbells or any other beneficiary to suffer detriment of any kind.
2. I also find that it is unnecessary for the variation to include the qualifying words "excluding roof forms, doors, windows and openings". It is clear from my findings that the requirement to construct from 60% brick or brick veneer only applies to the underlying vertical structure of the dwellings. This is also clear from Jacobs -

No one would read this covenant as requiring that floors, stairs, rafters or doors should be of brick ...[13]

1. Indeed it would be an absurd outcome if the Responsible Authority required the roof, doors, windows or other openings to be constructed from brick in order to achieve compliance with the restrictive covenant.

Does the development respect the existing neighbourhood character or contribute to the preferred neighbourhood character?

1. The Responsible Authority was principally concerned that the development is inconsistent with and will not contribute to the desired Garden City Character of the municipality. It was not in contention between the parties that Garden City Character is an important defining feature of the municipality that is given strong emphasis in the Monash Planning Scheme.[14]
2. In addition the Responsible Authority was concerned that the development would not complement the existing neighbourhood character or contribute to the preferred future character, as set out in Clause 22.01: Residential Development and Character Policy. The applicable character statement for the subject site is 'Residential Character Type C' and is discussed in more detail below.

1. The Responsible Authority expressed strong concern about the extent of vegetation removal proposed on the subject land. It was particularly concerned about the removal of a Narrow-leaved Paperbark Tree located in the front setback area, which it submits contributes to the leafy character of Fairview Road and provides a significant backdrop. The development proposes to remove this tree in order to make provision for a second crossover on the site.
2. The Arborist Report[15] submitted with the permit application identifies that the Narrow-leaved Paperbark Tree (referred to as tree 16) is 6 metres in height with a canopy width of 7 metres. The tree is assessed as being in a late stage of maturity, with a useful life expectancy of less then 10 years. It has a retention value of less than fair.
3. I note that the development does not require a permit under the Vegetation Protection Overlay Schedule 1 (VPO1) for the removal or destruction of any vegetation on the site, because the permit requirement only applies to taller canopy trees that are higher then 10 metres.[16]
4. The Monash Planning Scheme strongly recognises the importance of canopy trees as a significant aspect of neighbourhood character. Clause 22.01 Residential Development and Character Policy emphasises the need for new development to retain the existing tree canopy in order to protect and extend the Garden City Character of Monash.[17] Both the existing and preferred character statements for the area highlight the presence of well-planted front gardens with large trees.[18]
5. Clause 22.05 Tree Conservation Policy specifically sets out the following policies on tree conservation:
   • Existing semi-mature and mature canopy trees be retained wherever possible to ensure maintenance of the tree canopy.
   • Existing street trees be retained and protected.
   • Semi-mature canopy trees with spreading crowns be planted as part of any new development, in open space areas, along boundaries adjacent to neighbouring open space and in front setback areas to reinforce the Garden City Character of the area.
6. The Decision Guidelines in Clause 22.05-4 require consideration to be given to the following (amongst other matters):
   • Whether any existing semi-mature or mature canopy tree that contributes to the Garden City and neighbourhood character will be removed by the development.
   • Whether any tree with a trunk circumference greater than 500mm (160mm diameter), at 1200mm above the ground, or higher than 7.5 metres will be removed by the development.
   • Whether the proposed landscape treatment in the front setback area and other open space areas contributes to the Garden City Character of the neighbourhood.
   • Whether the proposed landscape treatment includes new canopy trees with spreading crowns, sympathetic to the existing landscape character.
7. I have considered the policies in the Planning Scheme with respect to tree conservation and landscaping, and find that on balance, the removal of the Narrow-leaved Paperbark Tree is acceptable. Whilst I accept the desirability of retaining existing mature trees where possible, the policies in the Planning Scheme must be applied flexibly with regards to the individual merits of each application.
8. I have formed the view that the development will achieve an acceptable landscape and character outcome for the following reasons:
   • The Paperbark Tree is not an individually significant tree in a statutory sense. The protection offered by VPO1 is limited to trees that are higher then 10 metres - the Narrow-leaved Paperbark Tree is only 6 metres in height. The tree is also not protected under any local law.
   • The primary purpose of VPO1 is the protection of significant vegetation that contributes to the urban character of the municipality - it is not concerned with the biodiversity values of vegetation or protecting areas of habitat. The objective of VPO1 is to conserve 'significant treed environments' and the statement of significance in Schedule 1 recognises canopy trees as a significant aspect of the Garden City Character of Monash. VPO1 adopts a single criterion for determining whether a tree should be protected by a permit requirement, and that relates to the size of the tree.[19] The absence of protection for trees that are less then 10 metres tall suggests to me that the smaller trees are considered by the Planning Scheme to be less significant and less contributory to the canopied leafy "treescape" that is given so much prominence in the Planning Scheme.
   • It also appears that the Responsible Authority's local Tree Conservation Policy is more concerned with the retention of taller canopy trees - the Decision Guidelines require consideration to be given to whether the tree is taller then 7.5 metres. This is presumably a reference to the earlier (and original) VPO1 requirement, which protected trees that were taller then 7.5 metres.[20]
   • It is apparent from the Arborist's Report that the Narrow-leaved Paperbark Tree has a limited life span of no more then 10 years and has a retention value of less than fair. It appears to have some structural faults with its trunk and branches, both of which have also been assessed by the Arborist as less than fair. In light of this I consider that the tree is most likely in decline and will not make any significant long term contribution to the streetscape of Fairview Road.
   • I consider that the loss of the tree would have a minimal impact on the existing character of Fairview Road. The 'Current Character Statement' emphasises a dominance of double-fronted consistently setback, single storey brick veneer dwellings from the 1950s and 1960s with well planted front gardens that generally obscure the architecture. However, it was apparent from my site inspection that there are a large proportion of prominent two storey houses on Faireview Road, with little to no planting in front gardens. This was especially evident with the two dwellings adjoining the subject land at 42 and 46 Fairview Road and directly across the road at 37 Fairview Road, all of which I would characterise as having notably sparse front setbacks. The pattern is continued with much of the newer development on the street comprising large contemporary dwellings with little to no landscaping in their front setbacks - for instance 12, 22, 24, 23 and 25 Fairview Road. It was also apparent that few if any of the properties in the area have canopy trees in their front setback area. The prevailing trees mainly comprise smaller trees and are associated with older housing stock.

1. The Responsible Authority was critical of the inclusion of two vehicle crossovers in the development, submitting that it is contrary to the Garden City Character of the area. I note that it is policy in Clause 22.01-3 to minimise the number of vehicle crossings in order to maintain existing kerb side parking and green spaces in front setback areas and in naturestrips.
2. I am satisfied that the provision of an additional crossover on the subject land will not unreasonably harden the streetscape of Fairview Road or dominate the frontage of the site. The crossovers will be approximately 7 metres apart and will be visually separated by a generous front setback area. I have already found that the development has made adequate provision for landscaping areas and I consider that this will further reduce the impact of the two crossovers on the streetscape. In addition, the visibility of the second crossover will be reduced by the location of the site tucked into the 'elbow' of the bend of Fairview Road and also the topography of the site itself - with both driveways sloping down and away from street level towards the garages which are located below natural ground level.
3. I do not accept the Responsible Authority's submission that dual crossings are out of character in Fairview Road. It was apparent from my inspection that there are a number of other properties on Fairview Road with double crossovers - including Numbers 10, 23, 35 and 37. In addition, there are at least seven other double crossings on Fairview Road that are the result of adjoining driveways on adjacent lots - these include Numbers 16 and 18, 26 and 28, 25 and 27, 29 and 31, 30 and 32, 34 and 36, 38 and 40. In light of this, I am satisfied that the provision of an additional crossover on the subject land will not be inconsistent with the rhythm of the crossovers in the street.
4. The Responsible Authority argued that the provision of two crossovers will result in the loss of one on-street car space adjacent to the subject land. I was not provided with any evidence to suggest that there are any significant parking demands in Fairview Road. From my inspection I observed that Fairview Road is a residential area with ample opportunity for on-street parking.
5. I am also satisfied that the frontage of the development will not be dominated by the two garages. In the first instance, the garages are setback between 9 and 14 metres from the front boundary and are located well below natural ground level with only around 800mm of the garage doors visible from the streetscape. Furthermore the garage to Unit 2 has been reduced to a single garage, reducing the overall visual impact of the garages to the streetscape. I also find that the significant slope of the site will in any case restrict natural surveillance opportunities to the upper storey of the dwellings and will be unaffected by the positioning of the garages forward of the dwellings.

Is the built form and scale of development appropriate?

1. The Responsible Authority also expressed concern about the scale of the development, submitting that it presents as 'near' boundary to boundary built form. I do not accept this assessment and consider that the design response has been appropriately articulated and setback from front, side and rear boundaries. I also note that it was not in contention that the development complies with Standards B6 and B17 in Clause 55.

1. I note that at the conclusion of the hearing, Ms Acreman expressed concern about the following draft conditions:
   • Former Condition 1(f) which required the size of both decks to be reduced. In light of my finding that the development has made adequate provision for landscaping areas, I agree that this condition should be omitted.
   • Former Condition 1(g) which required the garage and deck to be setback at least 1.8 metres on the southern boundary to provide access for 'drainage maintenance requests'. The Responsible Authority was unable to advance any reasoning to justify this requirement and so I agree with Ms Acreman that it is unnecessary and should be omitted.
   • New Condition 1(f) which is aimed at preventing vehicles scraping or bottoming. I am satisfied that this condition reflects the requirement in Clause 52.06-8: Design standards for car parking - Design standard 3: Gradients and that it is appropriate for inclusion. I do however consider that the original drafting proposed by the Responsible Authority was unclear and I have accordingly modified the drafting to better reflect the wording contained in the Planning Scheme.
   • Condition 3 which requires the submission of a landscaping plan to the Responsible Authority's satisfaction. I do not accept Ms Acreman's submission that I should approve the landscaping plan filed with the amended application plans. The Permit Applicant did not lead any expert evidence in support of its landscaping plan and in light of the concerns raised by the Responsible Authority about the extent of canopy tree planting on the site and species selection, I consider that the condition should be retained (with some minor modifications). Given that the landscaping works are subject to the Responsible Authority's satisfaction, I do not consider that it is necessary to include an express requirement for the removal of landscaping from the rear easement area. This is a matter that should be the subject of further discussions between the Applicant and the Responsible Authority, as it possible that the Applicant may identify a species of vegetation that can appropriately be planted in this area.
2. I have made some general changes to the drafting and structuring of the conditions that are aimed at improving the readability and organisation of the conditions. I have also included sub-headings. I consider that these changes will assist the Permit Applicant to achieve compliance with the Responsible Authority's requirements and will ultimately assist with validity and enforceability (if required).
3. The Responsible Authority sought to include a requirement in Condition 1 for amended plans to be submitted showing the removal of the redundant section of crossing. I have modified this condition and moved it under the heading "vehicular crossings" , where I consider it is more appropriately dealt with.
4. The draft permit conditions also included several conditions relating to the need to obtain additional statutory approvals for matters such as drainage connections and vehicular crossings. I have omitted these conditions because I do not consider that it is appropriate for a planning permit to require compliance with other statutory provisions. The need to comply with other Acts or regulations or to obtain additional approvals can be more appropriately flagged in a covering letter accompanying the permit.

1. I am satisfied that the variation of the restrictive covenant is unlikely to cause the beneficiaries to suffer any detriment of any kind. Overall I consider the design of the development to be an appropriate design response that will contribute to the Garden City and preferred character objectives of the Monash Planning Scheme.
2. The decision of the Responsible Authority will be set aside and a permit will be granted.

• A variation to the restrictive covenant contained in Instrument of Transfer C496594 by deleting reference to "other than" and substituting "not less then 60%"; and
• Construction of two double storey dwellings on a lot

in accordance with the endorsed plans and on the conditions set out in this permit.

1. Before the development starts, three copies of amended plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. The submitted plans must clearly delineate and highlight any changes. When approved the plans will be endorsed and will then form part of the permit.

The plans must be generally in accordance with the plans submitted with the application, but modified to show:

1. The location and design of any proposed electricity supply meter boxes and gas and water meters. The electricity supply meter boxes must be located at a distance from the street which is at or behind the setback alignment of buildings on the site.
2. The provision of a corner splay or an area that is at least 50% clear of visual obstructions (or with a height of less than 1.2 metres) extending at least 2 metres long and 2.5 metres deep (within the site boundary) on both sides of each vehicle crossing to provide a clear view of pedestrians on the footpath of the frontage road.

1. All common boundary fences are to have a height of at least 1.8 metres above the finished ground level to the satisfaction of the Responsible Authority. The fence heights must be measured above the highest point on the subject or adjoining site, within 3 metres of the fence line.

1. A self supporting fence extension with an overall height of 2 metres must be erected above the fence on the northern and eastern boundary of Unit 2, adjacent to the proposed deck and lounge room, and above the fence on the southern boundary of Unit 1, adjacent to the kitchen, deck and lounge, to the satisfaction of the Responsible Authority.
2. In accordance with Standard B22 of the Monash Planning Scheme the following windows must provide a fixed external screen with upward facing louvers to a height of at least 1.7 metres above finished floor level or if windows are to have fixed obscure glazing it must be to a height of 1.7 metres above the finished floor level with any window above this level clear and openable:
   • At ground floor level, Unit 1, southern elevation windows to the study and bedrooms 2 & 3
   • At ground floor level, Unit 2, northern elevation window of bedroom 2.
3. The driveways must include a transition section of at least 2 metres where the difference in grade between two sections of ramp is greater then 12.5% for a summit grade change or 15% for a sag grade change, to the satisfaction of the Responsible Authority.
4. All new vehicular crossings must be shown to have a minimum width of 3 metres.

1. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

1. Before the development starts, a landscape plan to the satisfaction of the Responsible Authority, prepared by a Landscape Architect or a suitably qualified or experienced landscape designer, drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. The landscaping plan must be generally in accordance with the Landscape plan prepared by Zenith Concepts Landscape Design, dated June 2014, except that the plan must show:
   • the location of all existing trees and other vegetation to be retained on site
   • provision of canopy trees with spreading crowns located throughout the site including the major open space areas of the development
   • planting to soften the appearance of hard surface areas such as driveways and other paved areas
   • a schedule of all proposed trees, shrubs and ground cover, which will include the size of all plants (at planting and at maturity), their location, botanical names and the location of all areas to be covered by grass, lawn, mulch or other surface material
   • the location and details of all fencing
   • the extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site
   • details of all proposed hard surface materials including pathways, patio or decked areas

All species selected must be to the satisfaction of the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit.

1. Before the occupation of the development starts or by such later date as approved by the Responsible Authority in writing, the landscaping works shown on the endorsed plans much be carried out and completed to the satisfaction of the Responsible Authority.
2. The landscaping works shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.

1. The walls on the boundary of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the Responsible Authority.

1. All vehicular crossings must be constructed to the satisfaction of the Responsible Authority and any existing crossing or crossing opening must be removed and replaced with footpath, nature strip, and kerb and channel to the satisfaction of the Responsible Authority.
2. All new crossings are to be located no closer than 1 metre from the edge of any power pole, drainage or service pit, or other services (measured at the kerb).

1. All on-site stormwater is to be collected from hard surface areas and must not be allowed to flow uncontrolled into adjoining properties.
2. All stormwater run off must be collected on site and discharged at the south-east corner of the property, where it must be collected and free drained via a pipe to the Council pit located within the eastern boundary easement, or other nominated point of discharge approved by the Responsible Authority, constructed to the satisfaction of the Responsible Authority.

1. A plan of variation of a restriction must be submitted to the Responsible Authority for certification.
2. The certified plan must be lodged with the Office of Titles for registration in accordance with section 23 of the Subdivision Act 1988.
3. This permit does not come into effect until the restrictive covenant contained in Instrument of Transfer C496594 is varied in the Register of Titles in accordance with the certified plan of variation.

1. Before occupation all buildings and works specified in this permit must be completed to the satisfaction of the Responsible Authority. The Responsible Authority must be advised in writing when all construction and works are completed to enable the site to be inspected.

1. This permit will expire if one of the following circumstances applies:
   • The certified plan of variation is not lodged at the Office of Titles for registration within one year of the issued date of this permit.
   • The development is not started within two years of the issued date of this permit.
   • The development is not completed within four years of the issued date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

[1] [1956] VicLawRp 92; [1956] VLR 597.

[3] [2013] VCAT 1249.

[5] Mr and Mrs Campbell are not parties to this proceeding. Section 60(5) of the Planning and Environment Act 1987 requires the Tribunal to be satisfied that all covenant beneficiaries will be unlikely to suffer any detriment of any kind if the covenant is varied.

[6] The Campbells also expressed a number of other concerns about the merits of the development, however these are not relevant to the variation request - these included concerns about the proposed setbacks, that the development would be an overdevelopment of the site, lack of visitor car parking, traffic impacts and the extent of vegetation removal.

[7] This is consistent with findings in Jacobs v Greig [1956] VicLawRp 92; [1956] VLR 597 and Beman Pty Ltd v Boroondara CC [2013] VCAT 1249.

[8] In this regard I note that the development would most likely comply with the covenant if the underlying vertical structure of the upper level was substantially constructed from brick or brick veneer.

[9] 34, 36, 38 and 40 Fairview Road, Mount Waverley; 36, 38 and 40 Outlook Road, Mount Waverley; 6 Tyre Court, Mount Waverley; 2 and 5 Severn Court, Mount Waverley.

[10] In terms of compliance, it is possible that some of these dwellings could be constructed with an underlying vertical structure that is made of brick.

[11] [2014] VSC 148.

[13] Jacobs v Greig [1956] VicLawRp 92; [1956] VLR 597, 603.

[14] As recognised in the Municipal Strategic Statement of the Monash Planning Scheme - Clause 21.03-3 'Garden City Character'; Clause 21.02-2 'Maintaining the Garden City Character'; Clause 21.03-5 'Monash's Garden City Character'.

[15] Ross Moulynox (All Trees Consulting Services), Arboricultiral Report (March 2013).

[16] Schedule 1 to the Vegetation Protection Overlay - Clause 3.0. The tree must also have a trunk circumference of more then 500 mm at 1200 mm above ground level.

[17] Clause 22.01-3 Policy - Landscaping.

[18] Clause 22.01-4: Decision Guidelines - Residential Character Type "C" - Current character statement; Desired future character statement.

[19] In addition a permit exemption is provided to dead vegetation and a number of specified species of tree - Clause 3.0, Schedule 1 to the Vegetation Protection Overlay.

[20] This was subsequently increased to 10 metres by Amendment C44 on 3 February 2005.