A. A two lot subdivision of the subject land in accordance with Plan of Subdivision No 507358E prepared by Parry Fraser and Sons Pty Ltd, and

B. A variation of the Registered Restrictive Covenant contained in Instrument of Transfer No 1398187 by including the words: ...

"Save for the construction of a dwelling to face Wattle Drive at the rear of Lot 10 (also known as 20 Dunvegan Crescent), as approved by Planning Permit P528/00 issued by the City of Banyule on 23 November 2000"

"(c) erected on any of the lots hereby transferred any principal dwelling house not facing Dunvegan Crescent marked on the said plan"

1. Prior to the issue of a Statement of Compliance, the Restrictive Covenant contained in Instrument of Transfer 1398187 shall be amended to include the words:

"save for the construction of a dwelling to face Wattle Drive at the rear of Lot 10 (also known as 20 Dunvegan Crescent) as approved by Planning Permit P528/00 issued by the City of Banyule on 23 November 2000"

'(c) erect on any of the lots.... Dunvegan Crescent'

2. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage and sewerage facilities, electricity, gas and telecommunications services to each lot shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.

3. All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.

4. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.

5. Unless otherwise agreed in writing by the Responsible Authority, prior to the Certification of the Plan of Subdivision, the owner of the land at 20 Dunvegan Street, Macleod must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible Authority and such agreement shall require that:

a) Unless otherwise agreed in writing by the Responsible Authority, each lot created as part of Plan of Subdivision PS 507358E shall only be developed in accordance with plans endorsed pursuant to Planning Permit P528/00 issued on 23 November 2000.

b) Prior to the occupation of any dwellings, the dwelling must be numbered in accordance with Council's Allocation of Street Numbers.

A memorandum of the Agreement is to be entered on title and the cost of the preparation and execution of the Agreement and entry of the memorandum on title is to be paid by the owner.

6. The subdivision as shown on the endorsed plan shall not be altered or modified (whether or not in order to comply with any statute, Statutory Rule of By-Law or for any other reason) without the consent of the Responsible Authority.

7. An endorsed copy of the plans to be certified under the Subdivision Act 1988 must form part of this permit.

8. Unless the subdivision approved by this permit is commenced within two (2) years of the date of this permit, and completed within five (5) years from certification of the plan, then this permit shall lapse.

2. Liberty to apply for a variation of this order if Permit No P528/00is not extended or is a new permit is granted for a dwelling on Lot 2 of the Plan of Subdivision.

No appearance for Mr and Mrs L J Pritchard or Mr D J Gardner.

1. This is an application by Mr F Dukovski under Section 77 of the Planning and Environment Act 1987 ("the Act") against the decision of Banyule City Council ("Council") to refuse a permit pursuant to an application by the Applicant for a two lot subdivision and a variation of the restrictive covenant in Instrument of Transfer 1398187 allowing the construction of a dwelling facing Wattle Drive.

2. The permit application described the proposal as:

1. To vary the covenant contained in Instrument of Transfer 1398187 to allow the construction of a dwelling facing Wattle Drive.

3. The plan of subdivision lodged shows the creation of two lots, Lot 1 of an area of 339m2 on which there is erected a single storey brick house known as 20 Dunvegan Crescent, and Lot 2 at the rear of 256m2. The proposal is subject to easements of drainage and sewerage but there is no right of carriageway from Lot 2 through to Dunvegan Crescent.

4. The land is irregular in shape having a frontage on Dunvegan Crescent and also Wattle Drive of 15.24 metres. The depth on the eastern boundary is 39.12 metres and on the west 39.05 metres.

5. Lot 1 will have a depth of 22.26 metres on both sides and Lot 2 a depth from Wattle Drive of 16.86 metres on the east and 16.79 metres on the west.

6. The Planning and Environment List Practice Note (No. 2) information provided by Council to the Tribunal stated that notice of the permit application was given to all owners and occupiers within the original subdivision, and by a sign on the site facing Dunvegan Crescent and a notice in the local newspaper, and accordingly the Tribunal is satisfied that notice of the application was given to the owners and occupiers of all land benefited by the registered restrictive covenant in accordance with Section 52(1)(cb) and (1AA) of the Act.

7. A number of objections were received and two statements of grounds were filed with the Tribunal, one from Mr and Mrs L J Pritchard of 22 Dunvegan Crescent, Macleod, next door, and Mr D J Gardner of 4 Lynette Court, Watsonia. Only Mr and Mrs Pritchard's property has the benefit of the covenant.

8. There were other signatories to Mr Gardner's objection lodged with the Council who were residents of Lynette Crescent where the properties do not have the benefit of the covenant.

9. The land is zoned Residential 1. No overlays apply.

10. In its submission Council referred to the following policies and provisions of the Planning Scheme.

* State Planning Policy Framework - Clause 19.01 relating to subdivision,

* Local Planning Policy Framework and Municipal Strategic Statement,

* Element 1 - residential - objectives and strategies,

* Element 6 - built environment - objectives and strategies,

* Neighbourhood Character strategy - Garden Suburban Precinct G68,

* Melbourne 2030 Policy - planning for sustainable growth,

* Amendment C33 - proposing to amend the Banyule Planning Scheme,

* Amendment C34 proposing to amend the Banyule Planning Scheme,

11. The grounds of objection to the permit application are summarised as follows:

* Increase traffic and Noise associated with traffic along Wattle Drive;

* Concern over where existing vehicles on site will be located.

* The proposal will ruin the natural surroundings of Wattle Drive

12. The Council refused the permit on 2 October 2002 on the grounds that:

(a) the proposal does not satisfy the tests established by Section 60(5) of the Planning and Environment Act,

(b) the proposed subdivision will result in a breach of the restrictive covenant contained on Title.

13. The relevant text of the restrictive covenant created by Instrument of Transfer No 1398187, dated 20 December 1928 reads as follows (with the relevant paragraph in bold):

(a) excavate carry away or remove or permit to be excavated carried away or removed any earth clay stone gravel or sand from the said land hereby transferred except for the purpose of excavating for the foundation of any building to be erected on the said land nor

(b) use or permit nor suffer the said land or any part thereof to be used for the manufacture or winning of bricks tiles of potteryware nor

(c) erect on any of the said Lots hereby transferred any principal dwelling house not facing Dunvegan Crescent marked on the said plan..."

14. The Applicant was issued permit P528/00 by the Council on 21 November 2000 allowing the construction of a dual occupancy comprising a double storey dwelling to the rear of an existing dwelling. The permit was granted prior to the recent amendments to the Act as to restrictive covenants. Plans have been endorsed pursuant to this permit. The Applicant did not commence construction under the permit before it expired on 21 November 2002 and the permit has now expired. He has applied to the Council for an extension of time of the permit but the Council has deferred consideration of that application until the Tribunal has determined these applications. It appears that the Applicant relied on the Council for both planning and building permissions and that the building permit was held up for reasons in some way related to the restrictive covenant which were not fully explained to the Tribunal and may be the subject of some contention between the parties, but are not related to these proceeding.

15. The plans for that dwelling produced to the Tribunal show a two-bedroom dwelling house with the main bedroom with en-suite upstairs. The "front" of the dwelling would face Wattle Drive. The only windows in the upper level face Wattle Drive to the north and there are no windows or openings in the east, west or south elevation from the upper level. On the ground level sides on the east and west elevations the only opening is a small bathroom window in the west elevation. Any overlooking of the neighbouring properties from the proposal would be negligible.

16. Wattle Drive is not a made road but is used byproval was granted for another proposal to vary the covenant but the associated development was refused but was later approved by this Tribunal in Appeal P1712/2002 on 29 October 2002.

17. Council's submission referred to Section 60(5)(a) and Section 61(4) of the Act.

18. Section 60(5)(a) prevents Council from issuing a permit which allows the variation of the covenant unless either of the following apply.

"(a) 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

(b) if that owner has objected to the grant of the permit, the objection is vexatious or not made in good faith."

19. Mr Edwards submitted detriment of any kind and perceived detriment include objections that are not normally considered as part of planning objections to a 2-lot subdivision proposal eg. such as devaluation of property, and the test is more onerous than that used in a Good Design Guide or Res Code assessment.

20. Council submitted that the 2 lot subdivision is in breach of the restrictive covenant as it would enable a dwelling, whether previously approved or not, to face Wattle Drive and once subdivided both dwellings would be the principal dwellings on their respective lots thus breaching the covenant.

21. Council also relied on the grounds of objection that are summarised above as indicating a perceived detriment as a result of the variation and accordingly a permit for the perceived detriment should not be granted.

22. It is well established that where a covenant places restrictions on construction on an allotment, eg. a single dwelling covenant, a permit to subdivide the land does not result in a breach of the covenant. Whilst the subdivision may be a pre-requisite or part of the process for ultimate sale of a record dwelling, the subdivision itself does not result in the breach. The breach is created by the relevant construction.

23. In this particular case, unless Council renews the existing permit, the construction of proposed second dwelling would require a new permit.

24. The words of the relevant part of the covenant are quoted above. The first question to be addressed is whether the covenant creates a restriction on building a second dwelling on the allotment.

25. It requires that any principal dwelling house erected on the lot must face Dunvegan Crescent. It is possible to have two separate dwelling houses on the land facing Dunvegan Crescent eg. side by side or at the front and rear. What then is the effect of the use of the word "principal dwelling"? In this context the common understanding of the reference to a principal dwelling is to distinguish between the main dwelling on the land and subordinate dwellings such as servants cottages or gatehouses. A dependent persons unit would be a modern example. What is proposed here is a subdivision into 2 lots, each with a separate and independent single dwelling, neither of which is subordinate to dependent on nor related in any way to the other. My finding is that each would be a principal dwelling house, and the construction of a second principal dwelling house is not a breach of the covenant.

26. It can also be argued that covenant prohibits a second dwelling because in this case the second dwelling must of necessity be behind the existing dwelling and thereby does not have a frontage to Dun vegan Crescent.

27. Resolving this issue involves a consideration of the meaning of the words "face", "facing" and "frontage"

28. The relevant definitions of "face" and "facing" in the Macquarie Dictionary First Edition [1981] are:

32. to have the front towards or in the direction of: the statue faces the park.

36. to cover or partly cover with a different material in front: a brick house faced with wood.

37. to cover some part of (a garment) with another material.

38. to turn the face of (a playing card) upwards.

39. to dress or smooth the surface of (a stone, etc).

40. to cause (solders) to turn to the right, left, or in the opposite direction."

29. The relevant definitions in the Macquarie Dictionary of "frontage" are:

5. the space between a building and the street."

30. I conclude that the meaning of "facing" is not relative. It refers only to the orientation of the house or the direction in which the house faces. It is not a definition that connects or relates that direction to any aspect of the property on which the house is situated.

31. While the definition of "front" in the Dictionary has many definitions similar to that of "face" the relevant definitions of that word and the definitions of "frontage" have an element of relativity between the building and its situation on the land.

32. I determine that the paragraph © of the covenant refers to the orientation of the dwelling. It assumes the house will have a "front, which is commonly the principal facade of the house facing the street. However often houses are oriented with their "front" facing in directions other than towards or unrelated to the frontage of the land, particularly in rural or lower density areas, eg. to obtain the benefit of a view. In these cases the house will "face" in a direction other than towards the frontage of the land.

33. All that this covenant requires is that the "front" of the house face towards Dunvegan Crescent. Thus no breach of the covenant would occur if a house was built back to front on the lot with the rear facing Wattle Drive and the front facing Dunvegan Crescent, or, if the subdivision created a battle-axe block having access to Dunvegan Crescent and the houses oriented accordingly. I find that this proposed subdivision does not result in the breach of the covenant.

34. It is now necessary to consider the aspects of "perceived detriment" identified by the objectors to determine whether the existence of these perceptions bars the Tribunal from varying the covenant. None of the objectors appeared at the hearing so the Tribunal can is obliged to refer the elements of the objections identified above. I accept the many authorities that the existence of "any perceived detriment" however small as a consequence of the variation or removal of the covenant has the effect of barring the granting of the application.

(a) 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 **[**emphasis mine] the removal or variation of the restriction."

36. Would the detriments identified in the objections be suffered as a consequence of the variation of the covenant.

37. I find that the detriments listed do not relate to the way in which a second dwelling on the land may face. No objection appears to refer to this. The detriments are expressed as consequences of the construction of a second dwelling on the land, for instance, increased traffic, future sealing of road, loss of views, loss of neighbourhood character, and overshadowing, but the covenant does not prohibit that. The covenant only regulates the way in which any principal dwelling on the lands must face. I find the detriments and perceived detriments would not be suffered as a consequence of the variation of the covenant and therefore the variation is not prevented by Section 60(5) of the Act.