1. The hearing before me is to consider an application by the council pursuant to section 75 of the Victorian Civil & Administrative Tribunal Act 1998 to summarily dismiss the application for review because, irrespective of the planning merits of the application, section 61(4) of the Planning and Environment Act 1987 would require that the Tribunal refuse the grant of a permit.
2. I am not persuaded that a condition to the effect of section 62(1)(aa) can operate to overcome the prohibition in section 61(4). I find that unless there is a prior or simultaneous grant of a permit or decision to grant a permit to allow the removal of variation of the covenant, a permit cannot be granted by either the responsible authority or the Tribunal if the grant of a permit would authorise anything which would result in a breach of the covenant. I find that as the grant of a permit in this particular case would result in a breach of the covenant affecting the subject land, the application for review must fail and should therefore be dismissed. I will now set out my reasons for this conclusion.

What does section 61(4) mean?

1. There are three means of removing or varying a registered restrictive covenant:
   • Apply for a planning permit under clause 52.02 of the planning scheme;
   • Seek an amendment to the planning scheme; or
   • Make an application to the Supreme Court under section 84 of the Property Law Act 1958.
2. Section 61(4) deals only with the first of these options - removing or varying a covenant by way of permit. It refers to a permit having been issued or a decision having been made to grant a permit to allow the removal or variation of the covenant. Other provisions of the Act deals with the removal or variation of a covenant by way of planning scheme amendment. For example, section 96I(1A) and (1B) deal with a combined permit and amendment process and contain provisions similar to section 61(4) and 62(1)(aa).
3. Section 61 of the Act deals with the type of decision that may be made about a permit application. Under section 61(1), the responsible authority may decide to grant a permit; or to grant a permit subject to conditions; or to refuse to grant a permit on any ground it thinks fit. Subsections (2), (3), and (4) place constraints on the power to grant a permit under section 61(1). On its face, section 61(4) prohibits the grant of a permit that would authorise anything which would result in a breach of a registered restrictive covenant unless there is a prior or simultaneous permit granted or decision to grant a permit to allow the removal or variation of the covenant.
4. Section 62(1)(aa) is concerned with the practical implementation of section 61(4)(b) - i.e. the grant of a permit subject to conditions. A permit to allow the removal or variation of a covenant does not of itself remove or vary the covenant: it simply authorises this from a planning perspective. Once a permit is issued, steps must be taken to prepare the necessary paperwork and lodge a certified plan at the Office of Titles. Ultimately, the Register of Titles will be altered and the covenant on the title will be either removed or varied.
5. There is an old adage that "there's many a slip twixt the cup and the lip". Thus someone who obtains a permit to remove or vary a covenant may fail to follow through with the necessary paperwork and actually have the covenant removed from the title or varied. In my view, section 62(1)(aa) is intended to address that situation. Until the second step of actually removing or varying the covenant in the Register of Titles occurs, the permit will not come into effect. The permit holder will not be able to act on the permit until the covenant is removed or varied and the use or development authorised by the permit is no longer in breach of the covenant.
6. These two provisions are intended to work together. Section 62(1)(aa) supports the principle and operation of section 61(4). Both provisions were introduced into the Planning and Environment Act 1987 at the same time by the Planning and Environment (Restrictive Covenants) Act 2000 as part of a comprehensive package.
7. Counsel for both parties said that I should not and need not refer to the second reading speech of this Act to assist me in my interpretation and determination. This is notwithstanding that the applicant submitted extracts from the second reading speech at the hearing and that other Tribunal decisions to which I was referred include references to the second reading speech.
8. In a situation where parties contend that the meaning and effect of the two provisions is different, I consider that I am entitled to have regard to the context of the provisions, especially to establish the mischief that the Planning and Environment (Restrictive Covenants) Act 2000 was intended to address.[1] In CIC Insurance Limited v Bankstown Football Club Ltd, Brennan CJ, Dawson, Toohey and Gummow JJ said:

Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. ... if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.

1. I interpret the authorities to require consideration of the context in which the relevant statutory provisions appear when considering the correct interpretation of the words in question. The Court of Appeal has said that approaching the literal meaning of a statutory provision in the abstract and only subsequently considering the wider object and purpose of the legislation as a check in relation to the conclusions drawn is not a correct approach.[2]
2. Having regard to the context of the legislative package which introduced sections 61(4) and (2(1)(aa) into the Act, I find it is reasonable to conclude that the words of section 62(1)(aa) refer to removal or variation of the covenant as a result of the permit for such removal or variation referred to in section 61(4). It is not referring to removal or variation by some other means, such as a planning scheme amendment or Supreme Court application under section 84 of the Property Law Act 1958.
3. The mischief that the legislative package represented by the Planning and Environment (Restrictive Covenants) Act 2000 was intended to address was identified in the second reading speech in the following terms:

In 1988, the then Labor government introduced groundbreaking legislation to allow covenants to be removed or varied by planning processes. This introduced a simple alternative to complex Supreme Court proceedings.

In 1993, the Kennett government introduced amendments to the legislation that made it very difficult to remove or vary a covenant by grant of a planning permit. Most applicants then opted to apply for a permit to use or develop land, before subsequently acting to remove or vary the covenant.

This caused a variety of problems. Covenants beneficiaries had to participate in two applications to defend a covenant.

They also found that relying on the covenant in support of their objections was not a relevant planning consideration. Applicants lost the chance for simultaneous consideration of both development and covenant matters. Responsible authorities and the now Victorian Civil & Administrative Tribunal lost opportunities to act as a one-stop shop. At times, responsible authorities felt obliged to grant permits even though they supported the covenant.

This bill implements a simple principle to end these problems - that a permit to use or develop land must not be granted if the permit would result in the breach of a covenant. It may only be granted if authority to remove or vary the covenant is given either before or at the same time as the grant of the permit.

1. The second reading speech then goes on to outline the way in which the Bill implements this principle and the methods by which applicants may seek the necessary authority. There is some dispute between the parties about whether the Act faithfully implements the methods described. I do not need to enter this debate. In my view, the meaning of the provisions are plain when regard is had to the plain meaning of the words, the structure of the Planning and Environment Act 1987 as a whole, and the mischief which the Planning and Environment (Restrictive Covenants) Act 2000 was intended to address.
2. I agree with the views expressed by Deputy President Horsfall in Cardamone v Darebin CC[3] that the bar in section 61(4) is a specific provision, which prohibits the grant of a permit in certain circumstances, whereas section 62(1)(aa) is a provision that only applies if a permit can be granted.
3. The applicant argued that if a permit which would otherwise authorise something that would result in a breach of a covenant includes a condition under section 62(1)(aa) that the permit is not to come into effect until the covenant is removed or varied, it cannot be said that the permit comes within the ambit of section 61(4). It is no longer a permit that can properly be described as a permit which would authorise something that would result in the breach of a registered restrictive covenant because by the time the permit comes into effect, the bar represented by the covenant will be gone.
4. In support of this argument, the applicant relies upon section 61(1). A planning permit can be granted subject to conditions, including a section 62(1)(aa) condition. In these circumstances, if such a condition is included it becomes a permit that will not result in the breach of a covenant.
5. I do not accept that section 62(1)(aa) can be used to enable a permit to be granted so as to effectively get around the bar in section 61(4) for the following reasons.
6. I consider that this argument misconstrues the nature of a permit. Permits usually consist of two parts - the authorisation (ie what the permit allows) and the conditions, if any.[4] It is wrong to confuse these two elements.
7. What the permit authorises or allows must relate to the provision(s) in the planning scheme or Act that require a permit for the particular use or development or other thing (such as the removal or variation of a covenant). Only if a permit is granted to authorise something permitted by the planning scheme or the Act does the opportunity arise to impose conditions.[5] There is not an unfetted right to impose conditions, unlike the responsible authority's right to refuse to grant a permit "on any ground it thinks fit".[6] Section 62 sets out what conditions can be put on permits. Section 62(1) deals with mandatory conditions. Subsections (2) and (5) deal with discretionary conditions, whilst subsections (4) and (6) prohibit certain types of conditions.
8. In practice, the way in which permits are written does not always accord neatly with the format of the Planning and Environment Regulations 2005 in term of "what the permit allows" and conditions. To determine exactly what a permit authorises regard must be had to what the permit allows and to any conditions, which limit or define what the permit allows.[7] Thus a permit may allow development of land for multi-dwellings whilst a condition of the permit may specify a maximum number of dwellings. In such a case, the permit can be said to authorise the specified number of dwellings. Similarly, a permit may allow construction of a building and a condition may limit the height of the building. In that case, the permit will authorise construction of a building not exceeding the specified height.
9. I therefore agree with the applicant that a permit must be read as a whole to determine what it authorises. However, a condition under section 62(1)(aa) simply provides when a permit will come into effect.[8] Changing the timing of when a permit will come into effect does not does not change what the permit authorises. It cannot authorise something that is otherwise prohibited under the planning scheme or the Act, in this case by section 61(4). If it would authorise anything in the way of a use or development or other thing that would result in a breach of a registered restrictive covenant, then section 61(4) requires that the permit must be refused unless a prior or simultaneous permit has been issued or decision made to grant a permit to allow the removal or variation of the covenant. In other words, a condition under section 62(1)(aa) does not define what use or development is authorised, but only when it can occur, ie when the permit will come into effect.
10. This interpretation is supported by having regard to the structure of the Planning and Environment Act 1987. Section 62 does not operate independently of section 61. Both provisions are found within Division 1 of Part 4 of the Act dealing with permits. Division 1 commences with applications for permits. There are various provisions dealing with how applications for permits are to be processed, what notice must be given of them, how they may be amended, and who may object to them. There are then provisions about the consideration of applications and then in section 61, what sort of decision the responsible authority may make about an application. If it is able to make a decision to grant a permit under section 61 and it decides to grant a permit subject to conditions, then section 62 provides what conditions can or must be put on permits.
11. In my view, when section 62(1)(aa) says that "if the grant of the permit would authorise anything which would result in a breach of a registered restrictive covenant", it is referring to the same permit and set of circumstances to which section 61(4) applies. It deals with the circumstance where "the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant". Exactly the same words are used in both sections. Such a permit can only be granted if a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant. As I said earlier, this only refers to the removal or variation of the covenant by way of a permit. It does not contemplate applications under section 84 of the Property Law Act 1958 to the Supreme Court. It is also only relevant in circumstances where a permit to remove or vary the covenant has been issued or decision made to grant the permit, but the permit has not yet been acted upon to effect the removal or variation through the Office of Titles. If it had been acted on, the trigger for the operation of section 61(4) would not apply, as there would be no breach, the covenant having been already revoked or varied.
12. Thus I find that it is only if a permit can be granted under section 61(4) that a condition under section 62(1)(aa) becomes relevant. Such a condition does not avoid the bar in section 61(4).

Can the Tribunal reach a different conclusion to the responsible authority?

1. In Bevilacqua v Port Phillip CC[9] Senior Member Byard considered whether the restriction imposed on the responsible authority under section 61(4) also applies to the Tribunal. He concluded that whilst the Tribunal has the powers of the responsible authority plus any other powers specifically given to it by statute, there were no specific powers given to the Tribunal to grant such a permit prior to permission to remove or vary the covenant, any more than to the responsible authority.
2. I agree with this conclusion. The words of section 61(4) say that the responsible authority "must refuse to grant the permit". These words are different to the words in section 61(2), which provide that the responsible authority "must decide to refuse to grant the permit" if a relevant referral authority objects to the grant of the permit. In Roads Corporation v McCarthy,[10] Justice Osborn held that, having regard to the overall structure and purpose of the Act, the Tribunal was not confined in the same way under section 61(2) as the responsible authority. He found that a consideration of the Act demonstrates three things:[11]
   1. the objectives of the Act support the view that it was intended to give a right of appeal in the circumstances in issue;

(b) the Tribunal is given discrete powers and is required to exercise those powers pursuant to discrete obligations;

(c) the procedural provisions of the Act expressly contemplate a right of appeal to the Tribunal in circumstances where a decision maker has used a permit pursuant to its obligation under s.61(2).

1. There is no right of appeal to the Tribunal contemplated in the circumstances of section 61(4). Therefore, whereas the context of the Act led to the conclusion in Roads Corporation v McCarthy that the Tribunal was not constrained in the same way under section 61(2) as the responsible authority, the context of the Act leads to the opposite conclusion with respect to section 61(4). If the responsible authority must refuse to grant a permit under section 61(4), then upon review, so must the Tribunal.

1. An application to the Supreme Court under section 84 of the Property Law Act 1958 is an alternative means of removing or varying a restrictive covenant. Different tests apply to an application for a permit to remove or vary a covenant by this means compared to the mechanism of a planning permit. The requirements of section 60(5) of the Planning and Environment Act 1987 can make it very difficult to obtain a planning permit. This is the situation that the applicant finds itself in. In these circumstances, the only recourse open to it is to make an application to the Supreme Court.
2. I am not persuaded that the expense associated with such an application or any difficulties that the Supreme Court may have considering such an application in the absence of specific approved plans[12] are good reasons to interpret the provisions of the Planning and Environment Act 1987 in a way that is contrary to what I consider to be the intent of the specific provisions and the whole legislative package of measures introduced by the Planning and Environment (Restrictive Covenants) Act 2000.
3. If an applicant wishes to obtain a permit that would authorise something which would result in a breach of a registered restrictive covenant and they cannot obtain a permit to allow the removal or variation of the covenant, then they must make a successful application to the Supreme Court before applying for the permit. They must also have proceeded to actually have the covenant removed or varied by the Office of Titles before applying for the permit. Only in that way can conflict with section 61(4) be avoided. As I remarked earlier, section 61(4) only refers to a simultaneous or prior permit having been issued, not to any other process, such as a Supreme Court application.

1. Section 62(1)(aa) is a practical mechanism to achieve the intent of the legislation, which is that a permit to use or develop land must not be granted if the permit would result in the breach of the covenant. The permit may only be granted if a permit to remove or vary the covenant is given either before or at the same time as the grant of the permit, but where the covenant has not yet been removed or varied by the Office of Titles. A condition under section 62(1)(aa) means that the permit will not come into effect until the permit to remove or vary the covenant is acted upon and the covenant is actually either removed or varied.

1. The permit application in the present case would authorise construction of more than one dwelling. This would be in breach of the single dwelling covenant applying to the land. If such a permit was granted, even with a section 62(1)(aa) condition, the permit would still authorise multi dwellings. It is not irrelevant when the permit may come into effect because the permit still authorises multi dwellings.
2. I find that the permit application in the present case contravenes section 61(4). I find that if the permit was granted, it would authorise something that would result in a breach of the registered restrictive covenant. No permit has been issued to allow the removal or variation of the covenant, indeed one has been refused. There is no current application on foot. In these circumstances, the responsible authority and, upon review the Tribunal, must refuse to grant the permit.
3. As no permit can be granted, the application should be summarily dismissed pursuant to section 75 of the Victorian Civil & Administrative Tribunal Act 1998.

Registered restrictive covenant - operation of section 61(4) and section 62(1)(aa) Planning and Environment Act 1987

Stanley Rosen, Susan Wald & Robert Wald, Melbourne Water Corporation, Candice Berkowitz, Desmond Berkowitz, Sophia & Albert Amar, Suzanne Dembo, Ian Levy & Susan Levy, Patrick Miceli, Dorothy Kovacs

Design 2u for and on behalf of Y & P Harel Pty Ltd v Glen Eira SC [2010] VCAT 1865

1. Pursuant to section 75(1) of the Victorian Civil & Administrative Tribunal Act 1998, the proceeding is summarily dismissed.

For Design 2u for and on behalf of Y & P Harel Pty Ltd

Mr Adrian Finanzio of counsel, instructed by Tisher Liner

For Desmond and Candice Berkowitz, Susan and Robert Wald, Sophia & Albert Amar, Ian & Susan Levy, Suzanne Dembo & Patrick Miceli

Application under section 77 Planning and Environment Act 1987.

Application to summarily dismiss the proceeding under section 75 Victorian Civil & Administrative Tribunal Act 1998

1. This case involves an application for review of the council's refusal to grant a permit for a multi-unit development. The subject land is affected by a registered restrictive covenant, which the parties accept as restricting development on the land to a single dwelling. A previous permit application by the applicant to remove the covenant was refused by the council and was not appealed against. The applicant's only practical option to remove the covenant is by way of application to the Supreme Court under section 84 of the Property Law Act 1958. No such application has been made.
2. The council says it (and on review, the Tribunal) is precluded from granting a permit in this case because of the operation of section 61(4) of the Planning and Environment Act 1987. This provides as follows:

(4) If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant.

1. The applicant disputes this and says that provided the permit contains a condition as required by section 62(1)(aa), such a permit could not be properly described as a permit which authorised the breach of a registered restrictive covenant. Section 62(1)(aa) provides as follows:

(1) In deciding to grant a permit, the responsible authority must -

(aa) if the grant of the permit would authorise anything which would result in a breach of a registered restrictive covenant, include a condition that the permit is not to come into effect until the covenant is removed or varied; and

1. The hearing before me is to consider an application by the council pursuant to section 75 of the Victorian Civil & Administrative Tribunal Act 1998 to summarily dismiss the application for review because, irrespective of the planning merits of the application, section 61(4) of the Planning and Environment Act 1987 would require that the Tribunal refuse the grant of a permit.
2. I am not persuaded that a condition to the effect of section 62(1)(aa) can operate to overcome the prohibition in section 61(4). I find that unless there is a prior or simultaneous grant of a permit or decision to grant a permit to allow the removal of variation of the covenant, a permit cannot be granted by either the responsible authority or the Tribunal if the grant of a permit would authorise anything which would result in a breach of the covenant. I find that as the grant of a permit in this particular case would result in a breach of the covenant affecting the subject land, the application for review must fail and should therefore be dismissed. I will now set out my reasons for this conclusion.

What does section 61(4) mean?

1. There are three means of removing or varying a registered restrictive covenant:
   • Apply for a planning permit under clause 52.02 of the planning scheme;
   • Seek an amendment to the planning scheme; or
   • Make an application to the Supreme Court under section 84 of the Property Law Act 1958.
2. Section 61(4) deals only with the first of these options - removing or varying a covenant by way of permit. It refers to a permit having been issued or a decision having been made to grant a permit to allow the removal or variation of the covenant. Other provisions of the Act deals with the removal or variation of a covenant by way of planning scheme amendment. For example, section 96I(1A) and (1B) deal with a combined permit and amendment process and contain provisions similar to section 61(4) and 62(1)(aa). An application to the Supreme court is not relevant to the operation of
3. Section 61 of the Act deals with the type of decision that may be made about a permit application. Under section 61(1), the responsible authority may decide to grant a permit; or to grant a permit subject to conditions; or to refuse to grant a permit on any ground it thinks fit. Subsections (2), (3), and (4) place constraints on the power to grant a permit under section 61(1). On its face, section 61(4) prohibits the grant of a permit that would authorise anything which would result in a breach of a registered restrictive covenant unless there is a prior or simultaneous permit granted or decision to grant a permit to allow the removal or variation of the covenant.
4. Section 62(1)(aa) is concerned with the practical implementation of section 61(4)(b) - i.e. the grant of a permit subject to conditions. A permit to allow the removal or variation of a covenant does not of itself remove or vary the covenant: it simply authorises this from a planning perspective. Once a permit is issued, steps must be taken to prepare the necessary paperwork and lodge a certified plan at the Office of Titles. Ultimately, the Register of Titles will be altered and the covenant on the title will be either removed or varied.
5. There is an old adage that "there's many a slip twixt the cup and the lip". Thus someone who obtains a permit to remove or vary a covenant may fail to follow through with the necessary paperwork and actually have the covenant removed from the title or varied. In my view, section 62(1)(aa) is intended to address that situation. Until the second step of actually removing or varying the covenant in the Register of Titles occurs, the permit will not come into effect. The permit holder will not be able to act on the permit until the covenant is removed or varied and the use or development authorised by the permit is no longer in breach of the covenant.
6. These two provisions are intended to work together. Section 62(1)(aa) supports the principle and operation of section 61(4). Both provisions were introduced into the Planning and Environment Act 1987 at the same time by the Planning and Environment (Restrictive Covenants) Act 2000 as part of a comprehensive package.
7. Counsel for both parties said that I should not and need not refer to the second reading speech of this Act to assist me in my interpretation and determination. This is notwithstanding that the applicant submitted extracts from the second reading speech at the hearing and that other Tribunal decisions to which I was referred include references to the second reading speech.
8. In a situation where parties contend that the meaning and effect of the two provisions is different, I consider that I am entitled to have regard to the context of the provisions, especially to establish the mischief that the Planning and Environment (Restrictive Covenants) Act 2000 was intended to address.[13] In CIC Insurance Limited v Bankstown Football Club Ltd, Brennan CJ, Dawson, Toohey and Gummow JJ said:

Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. ... if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.

1. I interpret the authorities to require consideration of the context in which the relevant statutory provisions appear when considering the correct interpretation of the words in question. The Court of Appeal has said that approaching the literal meaning of a statutory provision in the abstract and only subsequently considering the wider object and purpose of the legislation as a check in relation to the conclusions drawn is not a correct approach.[14]
2. Having regard to the context of the legislative package which introduced sections 61(4) and (2(1)(aa) into the Act, I find it is reasonable to conclude that the words of section 62(1)(aa) refer to removal or variation of the covenant as a result of the permit for such removal or variation referred to in section 61(4). It is not referring to removal or variation by some other means, such as a planning scheme amendment or Supreme Court application under section 84 of the Property Law Act 1958.
3. The mischief that the legislative package represented by the Planning and Environment (Restrictive Covenants) Act 2000 was intended to address was identified in the second reading speech in the following terms:

In 1988, the then Labor government introduced groundbreaking legislation to allow covenants to be removed or varied by planning processes. This introduced a simple alternative to complex Supreme Court proceedings.

In 1993, the Kennett government introduced amendments to the legislation that made it very difficult to remove or vary a covenant by grant of a planning permit. Most applicants then opted to apply for a permit to use or develop land, before subsequently acting to remove or vary the covenant.

This caused a variety of problems. Covenants beneficiaries had to participate in two applications to defend a covenant.

They also found that relying on the covenant in support of their objections was not a relevant planning consideration. Applicants lost the chance for simultaneous consideration of both development and covenant matters. Responsible authorities and the now Victorian Civil & Administrative Tribunal lost opportunities to act as a one-stop shop. At times, responsible authorities felt obliged to grant permits even though they supported the covenant.

This bill implements a simple principle to end these problems - that a permit to use or develop land must not be granted if the permit would result in the breach of a covenant. It may only be granted if authority to remove or vary the covenant is given either before or at the same time as the grant of the permit.

1. The second reading speech then goes on to outline the way in which the Bill implements this principle and the methods by which applicants may seek the necessary authority. There is some dispute between the parties about whether the Act faithfully implements the methods described. I do not need to enter this debate. In my view, the meaning of the provisions are plain when regard is had to the plain meaning of the words, the structure of the Planning and Environment Act 1987 as a whole, and the mischief which the Planning and Environment (Restrictive Covenants) Act 2000 was intended to address.
2. I agree with the views expressed by Deputy President Horsfall in Cardamone v Darebin CC[15] that the bar in section 61(4) is a specific provision, which prohibits the grant of a permit in certain circumstances, whereas section 62(1)(aa) is a provision that only applies if a permit can be granted.
3. The applicant argued that if a permit which would otherwise authorise something that would result in a breach of a covenant includes a condition under section 62(1)(aa) that the permit is not to come into effect until the covenant is removed or varied, it cannot be said that the permit comes within the ambit of section 61(4). It is no longer a permit that can properly be described as a permit which would authorise something that would result in the breach of a registered restrictive covenant because by the time the permit comes into effect, the bar represented by the covenant will be gone.
4. In support of this argument, the applicant relies upon section 61(1). A planning permit can be granted subject to conditions, including a section 62(1)(aa) condition. In these circumstances, if such a condition is included it becomes a permit that will not result in the breach of a covenant.
5. I do not accept that section 62(1)(aa) can be used to enable a permit to be granted so as to effectively get around the bar in section 61(4) for the following reasons.
6. I consider that this argument misconstrues the nature of a permit. Permits usually consist of two parts - the authorisation (ie what the permit allows) and the conditions, if any.[16] It is wrong to confuse these two elements.
7. What the permit authorises or allows must relate to the provision(s) in the planning scheme or Act that require a permit for the particular use or development or other thing (such as the removal or variation of a covenant). Only if a permit is granted to authorise something permitted by the planning scheme or the Act does the opportunity arise to impose conditions.[17] There is not an unfetted right to impose conditions, unlike the responsible authority's right to refuse to grant a permit "on any ground it thinks fit".[18] Section 62 sets out what conditions can be put on permits. Section 62(1) deals with mandatory conditions. Subsections (2) and (5) deal with discretionary conditions, whilst subsections (4) and (6) prohibit certain types of conditions.
8. In practice, the way in which permits are written does not always accord neatly with the format of the Planning and Environment Regulations 2005 in term of "what the permit allows" and conditions. To determine exactly what a permit authorises regard must be had to what the permit allows and to any conditions, which limit or define what the permit allows.[19] Thus a permit may allow development of land for multi-dwellings whilst a condition of the permit may specify a maximum number of dwellings. In such a case, the permit can be said to authorise the specified number of dwellings. Similarly, a permit may allow construction of a building and a condition may limit the height of the building. In that case, the permit will authorise construction of a building not exceeding the specified height.
9. I therefore agree with the applicant that a permit must be read as a whole to determine what it authorises. However, a condition under section 62(1)(aa) simply provides when a permit will come into effect.[20] Changing the timing of when a permit will come into effect does not does not change what the permit authorises. It cannot authorise something that is otherwise prohibited under the planning scheme or the Act, in this case by section 61(4). If it would authorise anything in the way of a use or development or other thing that would result in a breach of a registered restrictive covenant, then section 61(4) requires that the permit must be refused unless a prior or simultaneous permit has been issued or decision made to grant a permit to allow the removal or variation of the covenant. In other words, a condition under section 62(1)(aa) does not define what use or development is authorised, but only when it can occur, ie when the permit will come into effect.
10. This interpretation is supported by having regard to the structure of the Planning and Environment Act 1987. Section 62 does not operate independently of section 61. Both provisions are found within Division 1 of Part 4 of the Act dealing with permits. Division 1 commences with applications for permits. There are various provisions dealing with how applications for permits are to be processed, what notice must be given of them, how they may be amended, and who may object to them. There are then provisions about the consideration of applications and then in section 61, what sort of decision the responsible authority may make about an application. If it is able to make a decision to grant a permit under section 61 and it decides to grant a permit subject to conditions, then section 62 provides what conditions can or must be put on permits.
11. In my view, when section 62(1)(aa) says that "if the grant of the permit would authorise anything which would result in a breach of a registered restrictive covenant", it is referring to the same permit and set of circumstances to which section 61(4) applies. It deals with the circumstance where "the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant". Exactly the same words are used in both sections. Such a permit can only be granted if a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant. As I said earlier, this only refers to the removal or variation of the covenant by way of a permit. It does not contemplate applications under section 84 of the Property Law Act 1958 to the Supreme Court. It is also only relevant in circumstances where a permit to remove or vary the covenant has been issued or decision made to grant the permit, but the permit has not yet been acted upon to effect the removal or variation through the Office of Titles. If it had been acted on, the trigger for the operation of section 61(4) would not apply, as there would be no breach, the covenant having been already revoked or varied.
12. Thus I find that it is only if a permit can be granted under section 61(4) that a condition under section 62(1)(aa) becomes relevant. Such a condition does not avoid the bar in section 61(4).

Can the Tribunal reach a different conclusion to the responsible authority?

1. In Bevilacqua v Port Phillip CC[21] Senior Member Byard considered whether the restriction imposed on the responsible authority under section 61(4) also applies to the Tribunal. He concluded that whilst the Tribunal has the powers of the responsible authority plus any other powers specifically given to it by statute, there were no specific powers given to the Tribunal to grant such a permit prior to permission to remove or vary the covenant, any more than to the responsible authority.
2. I agree with this conclusion. The words of section 61(4) say that the responsible authority "must refuse to grant the permit". These words are different to the words in section 61(2), which provide that the responsible authority "must decide to refuse to grant the permit" if a relevant referral authority objects to the grant of the permit. In Roads Corporation v McCarthy,[22] Justice Osborn held that, having regard to the overall structure and purpose of the Act, the Tribunal was not confined in the same way under section 61(2) as the responsible authority. He found that a consideration of the Act demonstrates three things:[23]
   1. the objectives of the Act support the view that it was intended to give a right of appeal in the circumstances in issue;

(b) the Tribunal is given discrete powers and is required to exercise those powers pursuant to discrete obligations;

(c) the procedural provisions of the Act expressly contemplate a right of appeal to the Tribunal in circumstances where a decision maker has used a permit pursuant to its obligation under s.61(2).

1. There is no right of appeal to the Tribunal contemplated in the circumstances of section 61(4). Therefore, whereas the context of the Act led to the conclusion in Roads Corporation v McCarthy that the Tribunal was not constrained in the same way under section 61(2) as the responsible authority, the context of the Act leads to the opposite conclusion with respect to section 61(4). If the responsible authority must refuse to grant a permit under section 61(4), then upon review, so must the Tribunal.

1. An application to the Supreme Court under section 84 of the Property Law Act 1958 is an alternative means of removing or varying a restrictive covenant. Different tests apply to an application for a permit to remove or vary a covenant by this means compared to the mechanism of a planning permit. The requirements of section 60(5) of the Planning and Environment Act 1987 can make it very difficult to obtain a planning permit. This is the situation that the applicant finds itself in. In these circumstances, the only recourse open to it is to make an application to the Supreme Court.
2. I am not persuaded that the expense associated with such an application or any difficulties that the Supreme Court may have considering such an application in the absence of specific approved plans[24] are good reasons to interpret the provisions of the Planning and Environment Act 1987 in a way that is contrary to what I consider to be the intent of the specific provisions and the whole legislative package of measures introduced by the Planning and Environment (Restrictive Covenants) Act 2000.
3. If an applicant wishes to obtain a permit that would authorise something which would result in a breach of a registered restrictive covenant and they cannot obtain a permit to allow the removal or variation of the covenant, then they must make a successful application to the Supreme Court before applying for the permit. They must also have proceeded to actually have the covenant removed or varied by the Office of Titles before applying for the permit. Only in that way can conflict with section 61(4) be avoided. As I remarked earlier, section 61(4) only refers to a simultaneous or prior permit having been issued, not to any other process, such as a Supreme Court application.

1. Section 62(1)(aa) is a practical mechanism to achieve the intent of the legislation, which is that a permit to use or develop land must not be granted if the permit would result in the breach of the covenant. The permit may only be granted if a permit to remove or vary the covenant is given either before or at the same time as the grant of the permit, but where the covenant has not yet been removed or varied by the Office of Titles. A condition under section 62(1)(aa) means that the permit will not come into effect until the permit to remove or vary the covenant is acted upon and the covenant is actually either removed or varied.

1. The permit application in the present case would authorise construction of more than one dwelling. This would be in breach of the single dwelling covenant applying to the land. If such a permit was granted, even with a section 62(1)(aa) condition, the permit would still authorise multi dwellings. It is not irrelevant when the permit may come into effect because the permit still authorises multi dwellings.
2. I find that the permit application in the present case contravenes section 61(4). I find that if the permit was granted, it would authorise something that would result in a breach of the registered restrictive covenant. No permit has been issued to allow the removal or variation of the covenant, indeed one has been refused. There is no current application on foot. In these circumstances, the responsible authority and, upon review the Tribunal, must refuse to grant the permit.
3. As no permit can be granted, the application should be summarily dismissed pursuant to section 75 of the Victorian Civil & Administrative Tribunal Act 1998.

[1] See CIC Insurance Limited v Bankstown Football Club Ltd (1997) [1997] HCA 2 187 CLR 384; K & S Lake City Freighters Pty Ltd v Gordon and Gouch Ltd [1985] HCA 48; (1985) 159 CLR 309; Winslow Constructors Pty Ltd v Mount Holden Estates [2004] VSCA 159; Roads Corporation v McCarthy [2004] VSC 369

[2] Winslow Constructors Pty Ltd v Mount Holden Estates [2004] VSCA 159 at [94]

[3] [2004] VCAT 171 at [33]

[4] See Regulation 23 and Schedule 1 Form 4 Planning and Environment Act Regulations 2005

[5] As provided for by section 61(1)(b)

[6] Under section 61(1)(c)

[7] Gant v Greater Geelong CC [2003] VCAT 2037

[8] See section 67(a) Planning and Environment Act 1987

[9] [2002] VCAT 1537

[10] [2004] VSC 369

[11] [2004] VSC 369 at [25]

[12] In Stanhill Pty Ltd v Jackson [2005] VSC 169, Justice Morris observed that:

[69] ... the lack of specific plans makes it more difficult for the plaintiff to discharge the onus of showing that a modification of a restriction will not substantially injure persons entitled to the benefit of the restriction.

I consider this was a comment made in the specific circumstances of that case where there was an absence of specific development plans to assist in deciding whether to vary the covenant to allow two dwellings or three dwellings. There is nothing to stop specific development plans being produced in support of a Supreme Court application, although it may be unwise to tie the variation of a covenant to specific plans in case those specific plans are not granted a planning permit. However, these are matters that relate to the Supreme Court process. They are not relevant to the application for a planning permit under the planning scheme and the Planning and Environment Act 1987.

[13] See CIC Insurance Limited v Bankstown Football Club Ltd (1997) [1997] HCA 2 187 CLR 384; K & S Lake City Freighters Pty Ltd v Gordon and Gouch Ltd [1985] HCA 48; (1985) 159 CLR 309; Winslow Constructors Pty Ltd v Mount Holden Estates [2004] VSCA 159; Roads Corporation v McCarthy [2004] VSC 369

[14] Winslow Constructors Pty Ltd v Mount Holden Estates [2004] VSCA 159 at [94]

[15] [2004] VCAT 171 at [33]

[16] See Regulation 23 and Schedule 1 Form 4 Planning and Environment Act Regulations 2005

[17] As provided for by section 61(1)(b)

[18] Under section 61(1)(c)

[19] Gant v Greater Geelong CC [2003] VCAT 2037

[20] See section 67(a) Planning and Environment Act 1987

[21] [2002] VCAT 1537

[22] [2004] VSC 369

[23] [2004] VSC 369 at [25]

[24] In Stanhill Pty Ltd v Jackson [2005] VSC 169, Justice Morris observed that:

[69] ... the lack of specific plans makes it more difficult for the plaintiff to discharge the onus of showing that a modification of a restriction will not substantially injure persons entitled to the benefit of the restriction.

I consider this was a comment made in the specific circumstances of that case where there was an absence of specific development plans to assist in deciding whether to vary the covenant to allow two dwellings or three dwellings. There is nothing to stop specific development plans being produced in support of a Supreme Court application, although it may be unwise to tie the variation of a covenant to specific plans in case those specific plans are not granted a planning permit. However, these are matters that relate to the Supreme Court process. They are not relevant to the application for a planning permit under the planning scheme and the Planning and Environment Act 1987.