The decision of the Responsible Authority is set aside. A permit must not be granted for variation of a restrictive covenant on the Certificate of Title to 36 Churchill Way, Kilsyth to permit the addition of a second single storey dwelling at the rear of the property.

Mr Paul Hogan; Mr Raphael. Mr Hogan called Ms Elrick to give lay evidence

1 Messrs Hogan and Raphael review council's decision to grant a permit to add a second dwelling in a backyard behind an existing single storey weatherboard dwelling. As beneficiaries of the restrictive covenant, they also review council's decision to permit a variation to a restrictive covenant over the subject land owned by the Larges.

2 On 15 July 2005 Member Rickards ruled as a preliminary matter, that Mr Hogan was not a beneficiary of this restrictive covenant, as both his lot and the subject land were historically transferred simultaneously to a previous single owner. The benefit of the covenant fell to owners remaining in the Plan of Subdivision at the time, excluding these two lots transferred together.

3 On 26 September 2005, at what was supposed to be the hearing date, the Tribunal discovered council failed to fulfil its s. 52(1)(cb) duty to give notice of the covenant variation to beneficiaries thereof.

4 Council therefore made its decision based upon planning merits only, without regard to the Planning and Environment Act 1987, s. 60(5) considerations.

5 An adjournment was ordered, and the Tribunal fulfilled council's duty of service of the variation application upon beneficiaries.

6 As a result, additional persons have become parties as a result of their lodging statement of grounds objecting to the covenant removal/variation. On the other hand, some other beneficiaries support its variation.

7 Mr Bradbury, for example, writes:

As a beneficiary for over 50 years of the single dwelling covenant, the subject of this application, I wish to object to the proposed alteration of the covenant. Mr. Timms placed the covenant on the property to guarantee open urban living and it was accepted by the authorities of the day.

As a beneficiary of the single dwelling covenant, I still require the covenant to remain in force to further guarantee the open urban living environment as a valuable commodity within this area.

8 As there was no objection to the substitution of the name of the permit applicant from the designer's name (Lateral Building Design) to the land owners' names (the Larges), the Tribunal made the amendment requested, pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act').

9 Mr Hogan did not object on the proviso that his consent would be withdrawn if the substitution raised any new (technical) ability for the permit applicant to avoid the restrictive covenant.

10 Notwithstanding receipt of objections to covenant variation by beneficiaries, council advises it still supports its earlier decision to grant a permit because:

i

all but one beneficiary lives some distance from the site;

ii

there are multi-dwellings near most beneficiaries;

iii

the most affected party, Raphael, is not affected by a significant change (eg to street frontage);

iv

on town planning grounds, the character of the area is not changed;

v

only one new unit is being added, and it is not altering the streetscape or building three or four units, as is the case elsewhere.

11 The large subject site is regular in shape and has a frontage of 18.9 metres, a depth of 55.03 metres and an area of 1,040 square metres. The site is currently occupied by a single storey weatherboard dwelling.

12 Neighbours enjoy similarly sized blocks, similar single storey dwellings and an abundance of vegetated and landscaped homes.

13 The area contains a mix of single storey unit developments ranging from dual occupancies to blocks with three, four or five units.

14 It is proposed to construct a second single storey weatherboard dwelling in the backyard.

15 The subject land is zoned Residential 1 under the Maroondah Planning Scheme. Within the Residential 1 Zone a permit is required pursuant to cl. 32.01-4 to construct a dwelling if there is at least one dwelling on the lot.

16 The land is also covered by a Significant Landscape Overlay 2, Schedule 4, pursuant to which a permit is required to remove vegetation of a certain dimension. The relevant purposes of the Significant Landscape Overlay, again in addition to implementing the State and local planning policy framework, are:

17 The site is also burdened by a restrictive covenant which prevents the construction of:

any building other than one dwelling house with outbuildings such dwelling house exclusive of outbuildings to be of at least one thousand pounds in value

18 Pursuant to the Planning and Environment Act 1987, s. 60(5), the bar raised against the grant of a planning permit for a second dwelling on the same lot is extremely high:

(5) The responsible authority must not grant a permit which allows the removal or variation of a restriction referred to in sub-section (4) unless it is satisfied that-

(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 The principal issues for consideration in respect of this application for review fall into two categories:

i

Are beneficiaries unlikely to suffer any detriment of any kind (including any perceived detriment) as a consequence of the removal or variation of the restriction, and were their objections vexatious or not made in good faith?

ii

Should a permit be granted on the merits if there were no restrictive covenant issue?

20 The Larges asked me to consider the latter, in the event they decided to seek Supreme Court covenant variation.

S.60(5) analysis - the genuineness of the respondent objectors

21 Residents explained how they enjoy the benefit of the covenant. With some exceptions that occurred before the year 2000 amendments were made to the Act, they enjoy a high standard of low density, treed, green, well landscaped, non-hard surfaced, residential neighbourhood. They are also concerned that covenant variation will create an adverse precedent.

22 On the strength of this covenant, Messrs Hogan and Raphael explained that owners have the confidence to spend money improving their property within this estate.

23 The aerial photo tendered by council successfully illustrates the difference between unit developments and single lots. The latter remain well vegetated, whereas the former do not - and this is a benefit and an amenity which must have been envisaged by the drafters of the covenant in the first place.

24 Canopy trees give a neighbourhood their character far beyond the streetscape itself. They provide a distant view to greenery and trees for neighbours generally. This is the impact experienced in this neighbourhood, a sense of greenery and serenity created by large well vegetated lots.

25 Messrs Raphael and Hogan contribute a green leafy aspect in their backyards to the immediately surrounding streetscape and neighbourhood. There is no doubt that the restrictive covenant contributes to this.

26 Upon analysis, Messrs Raphael and Bradbury have persuaded me of their bona fides and the Larges' inability to overcome the extremely high bar set by Parliament and s.60(5) of the Planning and Environment Act 1987. The objectors genuinely believe or perceive they will suffer a detriment with the covenant removal, and their objections are made in good faith and not vexatious.

Decisions favouring covenant variation or removal

27 Mr Easton referred me to cases where covenant removal applications have been successful, namely Schock v Yarra Ranges Shire Council**[1]** ('Schock') and Northern Exposure v Darebin CC[2] ('Northern Exposure').

28 But I do not find these cases on all fours with this case for the following reasons. In Schock, I found an inconsistency and exercise of double standards in the attitude of the objector, who had not lodged notice that he wished to be a party to the review to other covenant removals in the same neighbourhood.

29 Northern Exposure can be distinguished because:

i

It was not a building covenant;

ii

Only five lots remained which obtained the benefit of the covenant;

iii

None of the benefiting owners objected to its removal in the first place;

iv

One person joined later to the review allowed a covenant immediately next door to him removed with three dwellings built thereon.

30 This case is more on all fours with the facts in Viney v Moorabool SC[3].

Planning merits of a second dwelling in the backyard

31 The Larges asked me to consider what my decision would have been if I were in a position to grant a permit in the absence of the restrictive covenant. The request was made on the strength of Stanhill Pty Ltd v Jackson & Ors[4] in the event they decided to seek Supreme Court covenant variation.

32 Mr Hogan's backyard holds a rabbit hutch, chicken coop, vegetable patch, flower beds, landscaping, canopy elm and eucalyptus trees. Any second dwelling constructed by the Larges will enjoy the amenity he has painstakingly created in his backyard without contributing anything in return, because the Larges have removed most of their canopy trees.

33 I respond that I would have granted a permit subject to the addition of the following conditions which would have retained, to as great an extent as possible, the amenity enjoyed by Mr Hogan:

i

replacement of the proposed brick walled garage with a carport with a flat roof in this location, the carport wall (if any) set off the southern boundary 150mm with the consequential retention of the continuous new paling fence with lattice above;

ii

Retention of the Tree #6 in the arborist's report, which is in good condition[5] and is variously referred to by the parties as a maple, sycamore or ash. Retaining this tree would require exclusion of the development within at least 3.0 metres of the tree trunk. A sketch plan has been prepared and remains on the Tribunal file to confirm that a minor redesign of the floor plan could allow this if required by the Tribunal. That sketch plan pushes the entire southern boundary of the ensuite, WIR, bathroom and toilet three metres to the north;

iii

The insertion of compensation landscaping in the above three metre setback as well as in the setbacks from boundaries to the south and east and along the driveway. Unfortunately, the applicant has removed a few canopy trees in the rear yard, leaving stumps, thereby removing this property's contribution to the landscaped vista common to the area.

34 I would have granted a permit on balancing the twin considerations of neighbours' amenity with urban consolidation. The lots are so large and single storey development is generally acceptable in backyards provided sufficient vegetation, especially canopy vegetation, can be retained and planted.

35 Given that:

i

the large sycamore on the southern boundary which gives the Hogans (and other neighbours) their amenity can be retained by pushing back the building envelope;

ii

the substantial eastern canopy tree was removed anyway before this case came to the Tribunal;

iii

a flat roofed carport should not be seen above the existing new timber fence with lattice above to 2.4 metres;

iv

the Hogans' views to the Yarra Ranges are only distant glimpses and views of the sunset will still be available over a single storey rooftop;

v

additional vegetation needs to be ordered on the southern and eastern interfaces to soften the views of the roofline

this preservation of amenity justifies letting another family have a dwelling.

36 If the significant canopy tree #6 could not be retained, I would have refused planning permission, as canopy trees give a neighbourhood their character far beyond the streetscape itself. They provide a distant view to greenery and trees for neighbours generally, equally for the Hogans, Mrs Elrick and Mr Raphael.

37 Mr Raphael was concerned about headlights shining into his daughter's bedroom, as he has only landscaping and no fence to the street. But the low likelihood of four cars doing this after dark in the night time hours is too small a sample to disallow another dwelling for a family.

38 In summary I have found that the Larges have not overcome the extremely high bar set by the Planning and Environment Act 1987, s. 60(5) and I have no choice but to allow the application for review and direct that no permit issue.

[1] [2003] VCAT 1733

[2] [2003] VCAT 1839

[3] [2005] VCAT 1547 (27 July 2005)

[4] [2005] VSC 169 (19 May 2005)

[5] although it seems to need spraying to prevent disease