The registered proprietors of the burdened land covenant with the registered proprietors of the benefited land as set out in the restriction with the intent that the burden of the restriction runs with and binds the burdened land and the benefit of the restriction is annexed to and runs with the benefited land.

1. The development contains common property. Owners corporation rules have been registered in respect to the development.
2. The registered Rules under the Owners Corporations Act 2006 ('OC Act') which may have application to this proceeding are:
   1. Interpretation of these rules

The Rules are to be interpreted having regard to the following objectives of the Developer:

1.1 protecting and improving the investment of each Member;

1.2 maintaining and enhancing Common Areas for which the Owners Corporation is responsible for the benefit of all Members;

1.3 ensuring the Owners Corporation has the ability to provide services to its Members consistent with the quality of the Development; and

1.4 empowering the Developer to act on behalf of all Members to achieve all of the above, until such time as the Developer ceases to be the owner of a Lot on the Plan of Subdivision and any land in the Development.

In these Rules, unless the context otherwise requires, the following definitions apply:

Builder's Site Refuse Guidelines means the guidelines for disposal of all building refuse on all Lots on the Plan of Subdivision as amended from time to time by the Wolfdene Design Review Committee;

Building means any building or structure constructed on a Lot;

Common Area means the land designated as Common Property on the Plan of Subdivision;

Design Handbook means the design, development and use controls for all Lots on the Plan of Subdivision as amended from time to time by Wolfdene Design Review Committee for the purposes of achieving the expressly stated objectives of these Rules;

Developer means 1050 Western Port Highway Pty pd ACN 623 531 706 as the original owner of the Lots on the Plan of Subdivision or its assignee or transferor and/or UDIA Consolidated Pty Ltd ACN 600 437 376 as the developer or its assignee or successor (as the context permits);

Development means the development known as 'Brompton' located at Cranbourne South, Victoria as it exists from time to time;

Frontage means all of the land on that part of a Lot which is forward of a Residence and is visible to the public;

Member means a member of the Owners Corporation, being a person who is an owner of any Lot on the Plan of Subdivision;

Occupier means any person who resides with the consent of a Member at a Residence on a Lot;

Owners Corporation means the Owners Corporation created by the Plan of Subdivision;

Plan of Subdivision means plan of subdivision PS728916M the registration of which will create the Owners Corporation, including any subsequent stages of subdivision to be incorporated into the Plan of Subdivision;

Regulations mean the Owners Corporations Regulations 2007 as they may be amended from time to time;

Residence means one permanent non transportable private residence;

Rules mean the Brompton Owners Corporation Rules as they exist from time to time;

Settlement Date means the date of transfer of any Lot to any Member by the Developer;

Wolfdene Design Review Committee means a panel appointed by the Developer and comprising of representatives of the Developer and a qualified architect for the purposes of assessing compliance by Members with Design Handbook; and

Works mean the construction of a Residence or other structure on a Lot which will be visible to the public as well as any structural or cosmetic alterations to a Residence or any other structure which will be visible to the public

Each Member must ensure that the Building constructed on a Lot complies with Design Handbook.

3.2 No Works Without Approval of Plans and Specifications

A Member must not commence any Works on a Lot unless and until the Plans and Specifications of such Works have been submitted to and approved of in writing by Wolfdene Design Review Committee in accordance with Design Handbook.

The Member must ensure that all Works on a Lot comply with Design Handbook.

Each Member must ensure that the builder of a Building on that Member's Lot complies with the Builder's Site Refuse Guidelines.

10.1 Subject to Rule 10.4, the Developer may appoint a committee of Members (the 'Members' Consultative Committee) comprising of three Members with whom the Developer must consult in respect of issues arising from time to time out of the Rules, including the enforcement of the Rules and any proposed changes to the Rules.

10.2 Each Member of the Members' Consultative Committee is appointed for a 12 month period or such lesser period as the Developer determines and is eligible for reappointment.

10.3 Subject to Rule 10.4, if a Member of the Members' Consultative Committee ceases to be a committee member, the Developer is entitled to appoint successors from time to time.

10.4 The Members' Consultative Committee will cease to exist when the Developer is no longer registered and no longer entitled to be registered as proprietor of one or more of the Lots on the Plan of Subdivision. (the 'relevant registered rules')

1. In addition, model rule 5.2 of the owners corporation has application in this proceeding:

(1) An owner or occupier of a lot must obtain the written approval of the owners corporation before making any changes to the external appearance of their lot.

(2) An owners corporation cannot unreasonably withhold approval, but may give approval subject to reasonable conditions to protect quiet enjoyment of other lot owners, structural integrity or the value of other lots and/or common property.

(3) The owners corporation cannot unreasonably prohibit the installation of sustainability items on the exterior of the lot, including by prohibiting the installation of a sustainability item only on aesthetic grounds.

(4) The owners corporation may require that the location of a sustainability item, or the works involved in installing a sustainability item, must not unreasonably disrupt the quiet enjoyment of other lot owners or occupiers or impede reasonable access to, or the use of, any other lot or the common property.

(5) The owners corporation may impose reasonable conditions on the installation of a sustainability item on the exterior of the lot related to the colour, mounting and location of the sustainability item provided that these conditions do not increase the cost of installing the sustainability item or reduce its impact as a sustainability item.

1. The applicant seeks to change the exterior paint colour of the façade of the dwelling constructed on the lot from the existing light grey colour to a dark grey colour, being a colour which the applicant maintains is a colour within the colour palette set out in the Design Guidelines set out in the Design Handbook ('Design Guidelines').
2. The applicant sought clarification as to the entity which was responsible for granting approval to the requested colour change. According to the applicant, she was advised by Colin Won, the owners corporation manager, that changes to the appearance of the exterior of the lot needed to be approved by the owners corporation committee.
3. Relying on this advice the applicant submitted a request to change the exterior colour of the lot to the owners corporation committee. This request was rejected. The applicant then filed a complaint with the dispute resolution committee of the owners corporation which upheld the decision of the committee to refuse the colour change. The applicant had previously requested a colour change from the developer and had received a response that the developer 'would not approve any changes to the external colour.'[1] The applicant then made a formal request to the design review committee to change the exterior colour. That request was rejected by the design review committee.[2]
4. The applicant claims that the owners corporation has acted unreasonably. She maintains that the planned colour change does not impact on other units. Further, the owners corporation cannot unreasonably prohibit the proposed colour change.

1. The applicant signed a contract to purchase the lot at a time when the townhouse constructed thereon was incomplete. The applicant asserted that at the time the contract was signed a representation was made by the selling agent the exterior colour would be dark grey. The plans attached to the contract refer to the colour as being 'grey.'
2. Prior to settlement the applicant became aware that the exterior colour was not dark grey. She contacted the developer Wolfdene and enquired whether the exterior of the lot could be painted a darker shade of grey in accordance with the palette contained in the Design Guidelines. The response from the developer was that the colour would not be changed. According to the developer consistency of the exterior colours of the townhouse lots in this part of the development needed to be maintained. The developer further observed that the signed drawings contained in the contract referred to the colour of the external walls of the lot as being 'light grey.'
3. In response to a request to change the colour the developer indicated that the Design Review Committee adhered to the instructions from the developer. The decision to reject the request would not be changed. The applicant was referred to the restrictive covenant.
4. The applicant then sought advice from Colin Won, the owners corporation manager, as to whether the decision to change the exterior colour was a decision to be made by the developer or the owners corporation. She received advice that because the lot was complete[3] the decision now rested in the hands of the committee rather than the developer.
5. The applicant made a formal request to the owners corporation committee seeking consent to change the exterior colour of the lot. Her request was denied. She then participated in a grievance meeting with the committee. The previous decision refusing the exterior paint colour change was maintained.
6. The applicant advised the lot was not in street view and relied upon photographs to support her position. She submitted that there were other streets within the development where there was a mixture of colours to the exterior of the lots and relied upon photographs relating to those streets.
7. The applicant claimed that the colour requested was within the Design Guidelines. She referred to the panel of six shades of grey within the guidelines and stated that she wanted to paint the exterior of the townhouse in the darkest coloured grey. She stated that she had also proposed a two-tone colour with the top (upstairs) being the existing light grey and the requested darker grey colour to be to the lower (downstairs) portion of the townhouse.
8. The applicant claimed that as her lot was not facing a street the painting of the exterior it would not cause a disturbance to anyone.
9. Under cross examination she agreed that the Design Review Committee had provided reasons for its refusal. She further stated that she was aware of the restrictive covenant however, following advice from, Colin Won, the owners corporation manager, she understood that the decision to alter the exterior colour rested with the owners corporation.
10. She acknowledged an awareness of rules 3.13.23.3 and 3.4 of the Design Guidelines but maintained that her request to change colour complied with the colour palate contained in the Design Guidelines.
11. Under cross examination she maintained that her lot was probably not visible from the street but acknowledged that her lot was situated opposite a park and that the lot may be visible from the park.
12. For the assistance of the Tribunal she provided supporting documents including the Design Guidelines for the Brompton estate, photographs of the lot and surrounding lots, the photographs of lots in other nearby streets in the development with varying colour schemes, a letter of complaint to the owners corporation, the decision of the owners corporation grievance meeting dated 15 January 2025, the owners corporation model rules, the relevant plan of subdivision and a 'time-line' of events.
13. In her final statement the applicant stated that the changes she sought would not adversely impact the development. The exterior colour change had no objection from other nearby residents. She said that the lot was barely visible from the street. She maintained that the question of reasonableness[4] is an objective process, and the owners corporation was bound to consider her request to paint the lot in a darker shade objectively.

1. The evidence of the owners corporation was given by Mr L Beadle. Submissions were made by Mr L Guymer the solicitor appearing for the owners corporation.
2. Mr Beadle stated that he had been a member of the owners corporation committee for two and a half years.
3. He said that the applicant was subject to the Design Guidelines which required lot owners to adhere to the colours and the textures. The guidelines had been put together to protect the aesthetic nature of the estate.
4. Mr Beadle explained the process relating to the request for the colour change. He said that when the request was received the owners corporation manager sent an email to the committee members asking the for comment. He explained that the committee's first course of action was to check the Design Guidelines. The developer had constructed a block of townhouses containing the lot. It was a block of integrated housing of less than three hundred square metres. He said the entire block of town houses was considered as one facade. He referred to section 4 of the Design Guidelines and in particular clause 4.1. The request was refused.
5. A grievance committee meeting was conducted on 5 January 2025.The committee attempted to determine whether other owners of the townhouse lots could assist the process.
6. He stated that there was no block of townhouses in the development where the exterior colour was random. He stated that different colours do exist in the development, however, a pattern existed. It was a question of symmetry.
7. After the grievance committee meeting with the applicant, a further committee meeting was conducted on 8 January 2025. The committee considered the details. Each committee member made a comment. All committee members voted to reject the request by the applicant to paint the exterior in the darker grey colour. According to Mr Beadle the committee did not want to set a precedent.
8. His view of the matter is that as a first step the owners corporation was required to comply with the Design Guidelines. He added that the estate had not yet been completed.
9. By way of submission Mr Guymer submitted that the applicant was asking the owners corporation to decide whether the exterior colour change to the lot should be approved. He submitted that all lot owners within the subdivision and the owners corporation are bound by the Design Guidelines. The owners corporation must ensure that any changes are approved by the Design Review Committee of the developer.
10. The owners corporation committee acted in bona fide manner. It had considered the request, had conducted a grievance committee meeting and decided the request on 15 January 2025. Mr Guymer's submission was that the decision was reasonable in all the circumstances as the ruling complied with the Design Guidelines.
11. Mr Guymer asked the Tribunal to consider all documents filed in the proceeding on behalf of the owners corporation including the Brompton Design Handbook, the owners corporation rules, the notice of the Owners Corporation decision, photographs of townhouses within the development and the correspondence of ngd Design[5] to the applicant.

1. The essence of this dispute is whether the owners corporation had the sole power to allow the applicant to change the exterior colour of her lot in circumstances where such a proposed change, falling within the Design Guidelines which required developer approval under the restrictive covenant, had been refused by the developer.
2. The relevant registered rules of importance are:

(a) Registered rule 3.1 which reads; 'Each Member must ensure that the Building constructed on the lot complies with the Design handbook'

(b) Registered Rule 3.3 which reads 'The Member must ensure that all Works on the Lot comply with Design Handbook'

(c) Registered Rule 2 includes a definition of 'Works' which reads 'Works mean the construction of a Residence or other structure on a Lot which will be visible to the public as well as any structural or cosmetic alterations to a Residence or any other structure which will be visible to the public'.

1. Given the definition of 'Works,' exterior painting would be a cosmetic alteration to a Residence as it would constitute a change to the appearance of the townhouse.
2. The rules contain a 'requirement' for a lot owner to comply with the Design Handbook.
3. The rules came into effect on registration of the plan of subdivision in 2018. There is no evidence that any other rules have been adopted by the Owners corporation.[6]
4. To the extent that they are not inconsistent with the registered rules the model rules[7] apply.
5. The relevant model rule which has application reads:

(1) An owner or occupier of a lot must obtain the written approval of the owners corporation before making any changes to the external appearance of their lot.

(2) An owners corporation cannot unreasonably withhold approval, but may give approval subject to reasonable conditions to protect quiet enjoyment of other lot owners, structural integrity or the value of other lots and/or common property.

(3) The owners corporation cannot unreasonably prohibit the installation of sustainability items on the exterior of the lot, including by prohibiting the installation of a sustainability item only on aesthetic grounds.

(4) The owners corporation may require that the location of a sustainability item, or the works involved in installing a sustainability item, must not unreasonably disrupt the quiet enjoyment of other lot owners or occupiers or impede reasonable access to, or the use of, any other lot or the common property.

(5) The owners corporation may impose reasonable conditions on the installation of a sustainability item on the exterior of the lot related to the colour, mounting and location of the sustainability item provided that these conditions do not increase the cost of installing the sustainability item or reduce its impact as a sustainability item.

1. In the decision of Building Services West Victoria Pty Ltd v Owners Corporation PS507524P[8] ('Building Services West') it was determined that the function of an owners corporation is to manage and administer the common property.[9]
2. In Building Services West, the Tribunal decided that it was not the function of an owners corporation to unduly limit what a lot owner can do on his lot even if a rule may be regarded as a rule within Schedule 1 of the OC Act.[10]
3. Adopting the principles of Building Services West[11] the relevant registered rules merely exist to support the restrictive covenant. The relevant registered rules cannot be regarded as a function of the owners corporation. Putting aside the question of validity of the relevant registered rules I do not consider the relevant registered rules directed to the compliance with the guidelines contained in the Design Handbook as being of assistance to my determination.
4. My determination is that only Model rule 5.2 is relevant.
5. A request to change the colour of the exterior of a lot would fall within the type of 'change' envisaged in Model rule 5.2.
6. Model rule 5.2 (2) states that approval cannot be withheld unreasonably.
7. The applicant contends that the test of unreasonableness must be determined objectively involving the weighing up of other lot owners interests with the interest of the applicant. The owners corporation agrees that an objective consideration is required as part of the determination process but emphasises that the applicant was aware of the need to obtain Design Committee approval at the time she signed the contract. Further, all lot owners including the owners corporation are bound by the Design Guidelines.
8. The steps followed by the owners corporation committee were explained by Mr Beadle. The Design Guidelines were referenced, and the committee decided based on the Design Guidelines and considered the fact that the lot is contained within an integrated block of townhouses to be important. The point was made that the approval to the colour change was required from the developer. The developer had refused the request.
9. When considering the applicant's request, the owners corporation committee referred to the Design Handbook. The committee considered that the lot was within an integrated townhouse block and decided that the whole townhouse block was to be regarded as a single façade. The consideration process undertaken was an attempt to "second guess" what the developer might have determined.
10. There was no evidence that the developer would consider a determination of the committee as binding on the developer. There was no suggestion that the committee was the "Members Consultative Committee" under Rule 10 of the relevant registered rules. Even if the committee was constituted as the Members Consultative Committee, such a committee has no decision-making power. Its role is simply to 'consult' with the developer.
11. Given the fact that the developer had appointed an external consultant, namely 'ngd Design', to approve works for the purposes of the Design Guidelines, it is safe to assume that the process involving a request to change the external appearance of the lot through Model Rule 5.2 was separate to that of seeking Works approval from the developer under the Design Guidelines.
12. The committee was aware that the developer had rejected the request. In considering the request it was reasonable and appropriate for the committee to have regard to the developer's rejection because the applicant, all other lot owners and the owners corporation are all bound by the restrictive covenant.
13. Approval to the applicant's request by the owners corporation committee, in the absence of developer's consent, would have placed the applicant in breach of the restrictive covenant.
14. Whilst that breach could only be enforced by the land benefitted by the covenant, the evidence from the owners corporation was that the developer continued to own lots in the development, and consequently the developer as an owner of a lot benefitted by the restrictive covenant may have enforced the restrictive covenant against the applicant had she proceeded with the change of the exterior colour based on an approval of the owners corporation under Model rule 5.2.
15. Whilst a consideration of whether the lot was visible from the street or the park opposite may have peripheral relevance the overriding factor was that the developer did not approve the colour change.
16. The decision of the owners corporation committee was not a decision of the developer.
17. The procedure adopted by the committee in giving the applicant an opportunity to be heard was fair and reasonable. Such a process was not flawed and cannot be impugned.
18. The question is whether, having regard to the fact that the lot is within a block of integrated housing, the committee being aware of the Design Guidelines and the developer's rejection of the requested colour change, the committees decision was 'objectively' reasonable.
19. The committee considered the integrated nature of the townhouse block and the Design Guidelines. It determined that the proposal was unacceptable.
20. It was 'objectively' reasonable to refuse the request having regard to the fact that the developer had rejected the request. An approval by the committee would have thrust the applicant into a position of breach of the restrictive covenant had the applicant proceeded with the change of exterior colour.
21. I observe that the opinion of the owners corporation manager that the request to change of colour decision rested solely with the committee was plainly wrong.
22. Both developer approval under the Design Guidelines and owners corporation approval under model rule 5.2 was required. The owners corporation was a not the delegate of the developer. The developers delegate was ngd Design, an entity separate from the owners corporation.[12]
23. Any lot owner wanting to change to the external appearance of a lot which required Design Review Committee approval would need two separate approvals. The first being from the developer. Only if the developer approved the request would a second request be necessary. Such second request being under rule 5.2 to the owners corporation. If the developer rejected the change any request to the owners corporation would be otiose.
24. That part of the committee's consideration based on an attempt to second guess what the developer may have decided was wrong. However, on the basis the developer's rejection, the decision was correct because the parties were bound by the restrictive covenant.
25. For the reasons given the application will be dismissed.

[1] See the entry dated 16 December 2024 in the applicant's Timeline of Events document.

[2] See the particulars of paragraph 4 of the Points of Defence. The reasons for the refusal being provided after the commencement of the application on 22 April 2025.

[3] Interpreted as meaning the construction of the dwelling on the lot was complete.

[4] Which the Tribunal presumed was a reference to unreasonably withholding approval in Model rule 5.2 (2).

[5] Being the developer's delegate under the restrictive covenant.

[6] Apart from the relevant registered rules there is no evidence of any other registered rules made by the owners corporation under the powers given to an owners corporation under s 138B of the OC Act.

1. [7] As updated from time to time by the regulations. It is trite law that where there are registered rules the model rules will apply to the lot owners to the extent that the registered rules do not cover the subject matter of the relevant model rule.

[8] [2022] VCAT 64.

[11] [2022] VCAT 64, 183.