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[2006] VCAT 2525
Victorian Civil and Administrative Tribunal
2006-12-12
Original judgment source is linked above.
The applicant seeks a declaration as to whether the responsible authority should require the applicant to give notice pursuant to section 52(1)cb of the Planning and Environment Act, considering that the applicants planning permit was lodged pursuant to section 47(2) of the Planning and Environment Act and seeks to vary the instrument of covenant by deletion of three of obligations set out in the restrictive covenant contained in transfer P227592D.
The obligations which the applicant seeks to remove from the instrument of covenant are in relation to the outbuilding which has been situated on the subject property for in excess of 10 years in breach of the covenant, to which no persons being registered proprietors of properties which are benefited by the covenant have elected to object or enforce compliance with the covenant from the original constructor of the outbuilding, or any subsequent registered proprietor's.
3 There is a covenant that affects the subject land which provides that:
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Development is restricted to one private dwelling house constructed to a modern standard and design, having an area of not less than 130m2 with external walls of predominantly, brick veneer or stone material; and
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Any external outbuildings must be constructed of brick, brick veneer, stone, colour bond or corrugated iron in muted environmental toning with an area no greater than 40m2 and a height no greater than 3 metres.
4 There is an existing shed on the land that does not comply with the terms of the covenant. It has been in existence since 1995. The application for declaration concerns an application to vary the covenant by seeking to remove reference to the restriction imposed on the area of not greater than 40m2, the restriction as to height of not greater than 3 metres and in relation to the type of material and colour (in environmental toning). The reason for seeking a variation is because the shed has a floor area of approximately 60m2, it exceeds 3 metres in height and was constructed using materials that were not of an environmental toning (zinc corrugated iron). Also, the applicant wishes to raise the eastern side of the root of the shed to facilitate fitting a roller door.
5 There has been a protracted and complex planning history associated with the land and the registered restrictive covenant which applies to the land. In part this relates to various attempts by the applicant to vary and/or remove the covenant, with the ultimate intention of constructing a dwelling. The beneficiaries of the covenant oppose a further dwelling but would not oppose the limited alteration to the shed that Mr Hill wishes to carry out, ie raising the height of the wall to fit a roller door.
6 The difficulty is that the variation to the covenant applied for by Mr Hill would mean that a substantially larger shed with a floor area of up to 130m2 could be constructed under the zone and overlay provisions affecting the land[1] without need for a planning permit and without the giving of notice. According to the council, given the high level of beneficiary interest in this matter, it is considered unlikely that beneficiaries of the covenant will consent to that land use and development scenario.
7 Mr Hill is seeking to avoid giving notice of his proposed variation of the covenant by relying on section 47(2) of the Planning and Environment Act 1987. However, the council considers that notice should be given because exemption of notice at this time will deny opportunities for an interested party, including beneficiaries of the covenant, to comment on or object to such a situation.
8 Discussion with the parties at the hearing revealed that in fact Mr Hill's planning application to vary the covenant has lapsed, which means that the application for declaration is now theoretical.
9 In my view, a more confined application to vary the covenant, which would limit the floor area and materials to what now exist and the height to what is necessary in order to allow fitment of a roller door, would be far more likely to be approved on its merits and gain the consent of beneficiaries of the covenant. The beneficiaries are suspicious but could possibly be reassured that a limited variation to the covenant would not result in an "open slather". I suggested that Mr Hill might try such a consensual approach.
10 With respect to the application for declaration before me, I would not be prepared to make the declaration because it would be contrary to the principles I enunciated in an earlier case involving the same parties and the same covenant, Hill v Campaspe SC[2]. However, because the issue is now only of theoretical interest, I consider it is more appropriate to simply dismiss the application.
[1] Residential 1 Zone and Land Subject to Inundation Overlay.
Hill
Campaspe SC [2006] VCAT 2525