Imbrogno v Boroondara CC [2014] VCAT 163 (17 February 2014)

1. As I indicated at the hearing, although each case turns on its own merits and there are results going both ways, generally there is a body of previous case law regarding this Section 60(5) test which indicates that the bar is set quite high. That is, the bar is set quite high in terms of any one applicant needing to meet the requirements of this provision so as to potentially receive Tribunal approval for the relaxation or removal of a restrictive covenant.
2. In particular, it seems fair to say (in reviewing the previous relevant decisions) that it is quite problematic/difficult to meet the requirements of Section 60(5) where a beneficiary property in reasonable proximity in the same street has lodged an objection to the application to vary or remove the covenant. Some relevant cases over previous years where the Tribunal has refused this type of proposal because of its real or perceived negative impacts on the beneficiary neighbours living relatively close by include:
   • Holdings Pty Ltd v Boroondara CC [1999] VCAT 185;
   • Ingberg v Bayside CC [2000] VCAT 2407, where the proposed construction of two dwellings was found to fail the statutory test;
   • Russo v Moonee Valley CC [2004] VCAT 586, where the Tribunal found the proposed construction of four double storey dwellings would fail this test.
3. There are examples of the Tribunal accepting that the proposed variation or removal of a covenant still meets the statutory test despite an objection by a beneficiary neighbour, but typically this involves a beneficiary neighbour who lives further away in a different street. See for example Northern Exposure v Darebin CC [2003] VCAT 1839.
4. To my knowledge the most recent red dot decision dealing with this issue is Giosis v Darebin CC [2013] VCAT 825. It seems fair to describe this decision as re-emphasising the rigorous nature of the statutory test to be met. In the situation where each of the three beneficiary objectors (one of which lived in the same street) in Giosis were located at least 100 metres from the review site, the Tribunal found that the proposal failed the statutory test. The Tribunal for example made the following comments at paragraph 18: