The land in Certificate of Title Volume 4307 Folio 319

1. Notice of application for review proceedings P286/2002 is to be given to the owners and occupiers of adjoining land and by means of a sign to be placed on the land and by means of a notice to be published in The Age newspaper in accordance with directions accompanying this document.

2. In relation to application for review No. P287/2002 notice of the review is to be given to the estate of E B Riley care of Margaret L Riley of 402-404 Dandenong Road, Caulfield North and to Aubrey Galway Schrader and Edward Alexander King Irving and further by the placing of a sign on the land and the publishing of a notice in The Age newspaper in accordance with any directions accompany this document.

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Ms Stella Kokkinos, senior town planner of the City of Glen Eira, appeared for the Responsible Authority.

Mr Graeme Peake, barrister, appeared on the instructions of his client for the Applicant Peter Giannakis.

Application under s.77 of the Planning and Environment Act 1987 (PE Act) for review of a decision to refuse to grant a permit.

Application under s.79 PE Act for review of the failure of the Responsible Authority to grant a permit within the prescribed time.

Residential 1 Zone and subject to a Development Contributions Overlay under the Glen Eira Planning Scheme.

1. Two storey at the rear of the site is not in accordance with Council's Policy.

2. The proposal will have a negative impact on the amenity of the adjoining properties.

3. The proposal does not address the fundamental concerns of the tribunal in its order dated 20 September 1999, Application for Review No. 1999/32199 in terms of:

* The intensity of the development within the subject site.

* The inappropriate length and height of walls along the boundary.

* The proposal's insensitivity to the characteristics of the site and adjoining properties.

* Inappropriate overlooking into the adjoining properties.

GROUNDS OF APPLICATION FOR REVIEW - P2002/000286

1. The refusal is contrary to proper and orderly planning principles.

2. The refusal is not representative of the application made.

1. This directions hearing was called to consider the modifications being sought to the relevant restrictive covenants affecting the land, the persons to whom notice of the respective proceedings should be given (having regard to the fact that no notice has been given at this stage of the review proceedings or the permit applications giving rise to such proceedings) and the identification of the land whose owners enjoy the benefit of the respective covenants.

2. The land concerned is 398 Dandenong Road, Caulfield North being the land in Certificate of Title Volume 4207 Folio 319. On that Certificate of Title, under "ENCUMBERANCES REFERRED TO" there is reference to the covenant contained in Instrument of Transfer No. 791436. A copy of that transfer has been provided. There are two covenants contained therein that are relevant for present purposes.

3. The dominant tenement, (or land enjoying the benefit of the first covenant) is a strip of land down the side boundary of premises now known as 402-404 Dandenong Road being the land in Certificate of Title Volume 3947 Folio 380. The covenant restrains the erection of any building on the burdened land within 60 feet of the northern boundary which is the frontage of the land to Dandenong Road. The development application proposes five double storey dwellings to encroach on that area. It is sought to have a set back of 6m rather than 60 feet which is equal to more than 18m. The second covenant is a restraint on levelling the land to below the level of the street or streets abutting the land. Mr Peake expressed some doubt as to whether modification of this covenant was really necessary, but as a precaution, he and his clients seek modification. The modifications sought are to allow the proposal in the development, (as opposed to the proposal for covenant modification).

4. So far as notice of the review in relation to the modification of covenant proposal is concerned, notice should be given to the owners of land benefiting from the covenant and also, pursuant to s 52(1AA) PE Act by means of a sign on the land and a notice published in a newspaper generally circulating in the area.

5. So far as the owners of land benefiting are concerned, the Responsible Authority has provided identification of the owner from its rate records as the estate of E B Riley, care of Margaret L Riley 402-404 Dandenong Road, Caulfield North. Notice should be given accordingly. The relevant title to that land however, shows additional registered proprietors being Aubrey Galway Schrader and Edward Alexander King Irving, solicitors both of 440 Collins Street, Melbourne. The endorsement of them as registered proprietors is now 20 years old. Mr Peake submitted that notice should not be required to be given to them in the circumstances. However, having regard to their appearing on the title we propose to require notice to be given to them unless they cannot, with reasonable exertion, be located. We note that they were solicitors practicing at 440 Collins Street, Melbourne in 1982. We anticipate that the Law Institute should be able to identify them from this information and advise whether they are still in practice and where they may be located.

6. As to the development application, notice of the review in that case should be given to the owners and occupiers of adjoining land and notice should again be given, pursuant to s 52(1AA) PE Act by means of a sign on the land and notice in a newspaper circulating in the area.

7. In this connection we have considered whether notice should be given to the owners and occupiers of land opposite the review site, that is to say, on the northern side of Dandenong Road. Although it is common for responsible authorities, and for the President of this Tribunal under delegation, to require notice to be given to the owners and occupiers of such "opposite" land; in this case, having regard to the actual locality and to the great width and business of Dandenong Road with its various reserves, carriageways, tram tracks and the like and nearby intersecting streets, we consider that it is not appropriate to require notice to be given in relation to properties on the opposite side of Dandenong Road.

8. Section 83B PE Act authorises the President to direct the giving of notice of review proceedings of this sort. The President has delegated this power to members pursuant to s 33 of the Victorian Civil and Administrative Tribunal Act 1998 the above directions are given pursuant to that delegation.

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