For the Respondent/Objectors: Mr Fenwick and Mr Murphy appeared personally.

1. I have considered this application during the course of the hearing and I am able to give my decision today.

2. It is not necessary for me to inspect the property. Photos, maps and plans were produced and the land was been described in the parties' submissions.

3. My determination is that the application for review is refused and that no permit for the removal or variation of the restrictive covenant should issue.

4. A number of submissions made by Mr Hill related to the validity of the covenant.

5. He submitted that the Council has given notice to a wider group of people than required by Section 52(1) of the Planning and Environment Ac 1987, and that, under Section 47(2), Council should not have given any notice of the application.

6. The Tribunal must determine the application irrespective of the procedure adopted at Council level. There is no provision in the Planning and Environment Act prohibiting the Council from advertising the application to a wider group of people than it is directed to advertise the application under Section 52. Also under Section 52(1)(a) the Council is authorised and directed to give notice to persons whom they consider may be detrimentally affected by the grant of the permit.

7. The Council decided to give notice of the application to the owners and occupiers of other lots in the subdivision benefited by the covenant. It is obliged to do so under Section 52(1)(cb). Even if Council had spread its net wider in advertising the application than it is directed by the Act, there is no defect in the application for review. If it had not done so, the Tribunal would have ordered that notice be given to the owners and occupiers of land benefited by the covenant before the hearing, as their rights may be affected.

8. Mr Hill referred to Section 77 and 81 of the Local Government Act. He says that the owner of Lot 4 is a City Councillor. Mr Hill took objection to and has made complaints about the Councillor participating in Council discussions in relation to the permit application, when she had a pecuniary interest.

9. However the Tribunal is not concerned with irregularities in Council procedure or at Council meetings. The Tribunal is obliged to determine the merits of the application afresh or de novo in accordance with the tests set out in sub-section 60(2), and alleged defects in Council meeting procedure are not relevant.

10. I agree with Ms Brezzi that a Councillor as the owner of private land affected by a permit application is entitled to make a private objection and lobby neighbours against it. Doing so does not raise any valid ground for the Tribunal to refuse or grant an application for review_._

11. Mr Hill raised further matters in relation to the validity of the covenant at common law:

* the covenant was extinguished by merger in relation to some of the lots

* the covenant, prior to its registration, was altered from the form it was originally signed by the covenantor, and

* the covenant was extinguished by the registration of a subsequent plan of subdivision.

12. Mr Hill did not give the Tribunal any detail of the basis of the submission as to merger or of any relevant transactions or documentation.

13. This Tribunal's jurisdiction is to consider an application for review of a decision of the Council under the Planning and Environment Act and the authority of the Tribunal is to grant or refuse that application.

14. The Tribunal does not have jurisdiction to determine the question of the validity of the covenant. It can consider only its interpretation on the questions of what land has the benefit of the covenant and whether the grant of a permit would result in a breach of the covenant and related matters. The issues Mr Hill raises can only be dealt with in proceedings before the Supreme Court or some other appropriate jurisdiction.

15. The Tribunal has before it a registered restrictive covenant endorsed as an encumbrance on Mr Hill's title. It appears Mr Hill has not considered ordinary conveyancing and mortgage practice (of which I have specialist knowledge and which was discussed at the hearing) that it is usual practice in a mortgage transaction for the lender to require that the borrower give the lender an authority to complete and alter documents after they have been executed, to enable completion and registration, and that the Land Titles Office's usual practice is only to alter documents with the authority of the solicitors for the parties, where an alteration of substance is required. Mr Hill was not able to produce any material to convince me that these procedures had not been followed.

16. That the covenant on its face may have been altered does not give the Tribunal jurisdiction to determine that the covenant has ceased to exist.

17. Likewise the Tribunal does not have any jurisdiction to determine whether the registration of a later plan of subdivision extinguishes the restrictive covenant. The covenant remains as a registered restrictive covenant notwithstanding the registration of the later plan of subdivision. If the Land Titles Office had taken the view that the provisions of the Transfer of Land Act he referred, had this effect, no doubt it would have removed the covenant from the title. Nothing I say affects any right of Mr Hill to bring any proceedings in another jurisdiction.

18. Mr Hill was originally of the view that the covenant was created after 25 June 1991 and as a result the relevant tests were set out in sub-section 60(2). However the Transfer of Land containing the covenant is dated 25 June 1989 and appears to have been stamped and registered on 27 June 1989. On its face it appears to have been created before 25 June 1991 and accordingly sub-section 60(2) does not apply and the relevant test is contained in sub-section 60(5).

19. Under Sub-section 60(5) two tests must be satisfied before the Tribunal can grant a permit which allows the removal or variation of a registered restrictive covenant:

(i) that the grant of the application will result in a situation where the owner of any land benefited by the covenant will be unlikely to suffer any detriment of any kind (including any perceived detriment) as a consequence of the removal or variation of the covenant, and

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

20. The matter is disposed off by a determination of the second ground before the first.

21. A number of owners objected to the grant of the permit although Mr Fenwick and Mr Murphy were the only objectors who appeared before the Tribunal. Mr Murphy's land does not have the benefit of the covenant. The second test refers not to the owners who have lodged the Statement of Grounds with the Tribunal but any owner who objected to the grant of the permit. Therefore the Tribunal must consider the standing of all those objectors, notwithstanding that they have not appeared before the Tribunal in this matter.

22. What is vexatious or not made in good faith has been well canvassed. Vexatious has the meaning, which was set out in the Council's submission. It is not necessary that the objector be acting in bad faith, it is sufficient to meet the test of "vexatious" if it is shown that the objection is totally without merit or groundless. However whilst the objections might have a limited weight, I do not consider that they are totally without merit or are absolutely groundless.

23. The objections relate to issues of the removal of vegetation, views, setting of precedents and other matters. Mr Hill has made detailed submissions to me in relation to a number of these matters. I may agree that some of those grounds may have limited merit or weight but I do not consider that they are totally without merit. The hurdle the legislation sets for the Tribunal to remove a restrictive covenant is high. Mr Hill referred to a decision of former Deputy President Bruce in the case of Monash and Pateras [1999] VCAT 2140 931 December 1999). Mrs Bruce considered objections in detail but concluded was that whilst they were weak, she could not conclude that there was no detriment or perceived detriment of any kind or that they were groundless. The same consideration applies in this case to that. The Tribunal has no option but to refuse the application on the grounds that the Applicant has not satisfied the test in sub-section 60(5)(b).

24. The test in sub-section 60(5)(a) is whether the owners of land affected by the application will be unlikely to suffer any detriment of any kind including any perceived detriment. Having looked at the photographs and plans produced, whilst it might be hard to say that the owner of Lot 11 who was an objector might suffer any detriment as a result of the grant of the application, it is arguable that the owners of other lots, particularly lots 2, 4, 5 or 6, may suffer some detriment or perceived detriment as a result of the removal of the covenant in terms of the effect on views and the construction of a second dwelling on a lot.

25. Mr Hill argued no precedent could be created as it practically impossible at present for the owners of Lots 6, 7 and 11 to subdivide their lots and build a second dwelling on the floodplain or elsewhere on their lots because there is no access to the rear except through Mr Hill's land and the land's physical character and topography. However ingenuity may in the future find a solution. A possibility of a detriment arising from construction of a second dwelling on a lot is a reasonable fear.

26. Likewise the possibility that the neighbours are unwilling to see any breach of the scheme established by the covenant on which they relied when they bought their properties to be a reasonable ground for detriment or perceived detriment.