"........and that no more than one messuage or dwelling house with suitable outhouses shall at any time be erected or standing on the said land hereby transferred"

"except that two dwellings may be erected in accordance with Planning Permit No. 99/4567 issued by Bayside City Council as Responsible Authority under the Bayside Planning Scheme on 25 October 1999 and with the endorsed plans that form part of that permit."

2. The permit must include the following conditions:

(1) The subject land must be developed only in accordance with Permit No. 99/4567 issued by Bayside City Council on 25 October 1999 and with the endorsed plans that form part of that permit.

(2) This permit shall expire if the Covenant has not been varied within two (2) years of the date of this permit. The Responsible Authority may extend the period referred to under Section 69 of the Planning and Environment Act 1987 if a request is made in writing before the permit expires or within three months afterwards.

Ms M Ganly, Urban Planner, appeared on behalf of the responsible authority (Council).

Mr M Burnside appeared on behalf of himself and Mrs Burnside.

1. This application is brought under Section 77 of the Planning and Environment Act 1987 ("the Act") for review of the decision of the Responsible Authority ("Council") to refuse a permit in application No.99/5150, regarding a restrictive covenant.

2. The permit application related to 171 Dendy Street, East Brighton ("the subject land"). The subject land and surrounding land is zoned Residential 1 under the Planning Scheme. Dendy Street is a Road Zone Category 2, identified in the Planning Scheme as a significant road.

3. The subject land is situated on the north-west corner of the intersection of Dendy and Curzon Streets. Its frontage is 17.5 metres, with a splay corner and a sidage to Curzon Street of 39 metres. The total site area is 690 sq.m. It is described by the Council officer's report as almost flat. It presently contains a single storey brick rendered dwelling and a substantial double garage constructed to within 2 metres of the Curzon Street boundary, which it is proposed to retain and use, along with the existing cross over.

4. The proposed variation is intended to allow the development of the subject land for two two-storey dwellings, the larger dwelling fronting to Dendy Street, and the rear dwelling fronting to Curzon Street. A new double garage, accessed off Curzon Street, is proposed for the front dwelling. The rear dwelling was proposed to be aligned with the existing double garage, so that its setback to the street would be only 2 metres, but a Condition of Permit requires that this setback be increased to three metres.

5. The proposed development has already been granted a permit, Permit no. 99/4567, a copy of which was annexed to the Council's submission. The permit application attracted only one objection, which was withdrawn. The officer's report on the proposal stated that it generally complied with the Good Design Guide and Council's own guidelines, and was considered to be in harmony with the surrounding streetscape. Comment was made on the well articulated and varied treatments, and the degree of separation of the upper levels complementing the domestic rhythm of the street. It was noted that there were no upper level windows overlooking neighbouring properties to the north and east, and no overshadowing of neighbouring properties, as the majority of shadow would be cast onto the street.

6. The subject land is Lot 6 on PS LP9754, a subdivision that appears to have been registered in 1924. The subject land was first transferred in 1929, by Instrument of Transfer no.1409136. This contained a restrictive covenant expressed to be for the benefit of the vendors-

".........and each of their respective executors administrators and transferees registered proprietor or proprietors for the time being of the balance of the land now comprised in the said Certificate of Title...".

7. The covenant dealt with two matters. The first dealt with excavation of earth, clay, stone or gravel from the site, and is not relevant to this proceeding. The second was:

"........and that no more than one messuage or dwelling house with suitable outhouses shall at any time be erected or standing on the said land hereby transferred."

8. The title details of the subject land are Certificate of Title vol. 5096 fol.102. A copy of this title was tendered by Ms Ganly, who appeared on behalf of the Council. The Applicant, who appeared on her own behalf, tendered a copy of the plan of subdivision with those lots which she understood on the advice of her solicitors to have the benefit of the covenant marked on it. A list of benefiting lots had been provided to the Council as part of the application. No copy of the parent title was produced.

9. The area in which properties affected by the covenant are found is located between Dendy Street and Marriage Road, and includes properties on both sides of Balfour Street and Curzon Street, which run north-south between Dendy and Street and Marriage Road.

10. A permit is required before a person may vary or remove a "restriction", which is defined to include a restrictive covenant, under Section 23 of the Subdivision Act 1988: Clause 52.02.

11. There are no special "decision guidelines" in Clause 52.02. Section 84B of the Planning and Environment Act 1987 contains the matters which must be taken into account by the Tribunal in determining an Application for Review. In addition, the Act contains limitations on the power of the responsible authority (and hence the Tribunal) to vary a covenant.

12. Section 60(5) of the Act states:-

"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."

13. There is no dispute to the applicability of Section 60(5) to this Application. The covenant was registered before 25 June 1991.

14. The permit application was made by Anatole Ingberg and Aurora Ingberg, who were at the date of the search the registered proprietors of the subject land. Although the permit application was made by both registered proprietors, this Application for Review is brought solely by Mrs Ingberg, who I will refer to as "the Applicant".

15. The permit application sought a permit for "covenant variation". In response to a request from the Council, the Applicant advised by letter dated 24 December 1999 that the permit applicants wished the covenant to be varied as follows:

"To remove the single dwelling restriction worded in the covenant as follows:

".....that no more than one messuage or dwelling house ... shall at any time be erected or standing on the said land...."

The purpose for which we want to vary the covenant is to build 2 two-storey townhouses as per permit no.99/4567."

16. Although the permit application was clearly stated to be for covenant variation, the letter of 24 December 1999 referred to removal, although it also related the purpose of the removal to the development already permitted for two townhouses. Notice was given that the application was for a variation to allow the two permitted townhouses, in my view correctly interpreting the application.

17. Notice was sent to all the persons identified as beneficiaries. The Council received 10 objections in response to the notices. They were from the owners of -

18. None of these properties adjoins the subject land. The nearest of them is developed as a two-storey building located on the north side of Dendy Street, across Curzon Street and on the far side of another substantial two-storey building which is situated on the corner opposite the subject land.

19. The nearest objector on the same side of Curzon Street as the subject land is separated from it by 8 properties. The nearest objector on the opposite side of Curzon Street is separated from the property opposite the subject land by 7 properties. The nearest property in Balfour Street is separated from the subject land by three properties fronting Dendy Street and one north of the properties fronting Dendy Street, and backs onto the property two to the north of the subject land.

20. It is plain even from this description that no direct effect of a detrimental nature could be feared by an objector as a result of a second house on the subject land. The effects which have been alleged are largely indirect consequences of the variation of the covenant.

21. The Council determined to refuse a permit for the removal of the covenant, on the sole ground that:

"The proposal has received objections from owners who benefit from the covenant which are not vexatious and in good faith and therefore pursuant to Section 60(5) of the Planning and Environment Act 1987, a permit must not be granted."

22. I accept that although the Council's decision refers to "removal" rather than "variation" of the covenant, it was not misled as to the intention of the application. The persons to whom notice had been given received the correct form of notice. I do not consider that anything turns on the incorrect wording of the refusal. The Council identified the source of the restriction on its power to grant a permit correctly. The Tribunal is not misled as to the nature of the application and the Applicant's intention.

23. The Council summarised the main grounds of objection as follows:

? Most properties in the subdivision benefit from this covenant.

? The erection of one dwelling only will maintain residential amenity.

? More than one dwelling will result in a loss of amenity to benefiting owners.

? Any multi-unit proposal would result in an increase in traffic and on street parking.

? Any multi-unit proposal would result in an increase in noise.

? Any multi-unit proposal would alter the character of the area.

? The removal will result in property devaluation.

24. Only six of the objectors were identified by the Council as being entitled to the benefit of the covenant. All objectors, however, were given notice of the Council's decision, as required by the Act, and provided with information about rights of review.

25. The Application for Review was brought on three grounds. The first was related to the incorrect use of the word "removal" in the refusal, and it is not necessary to say anything more about that. The other grounds are:

2. It doesn't appear that the objections to the proposal had been evaluated appropriately so as not to grant a permit is pursuant to Section 60(5) of the Planning and Environment Act 1987.

26. The first of these grounds is related to the apparent absence from the Council's deliberations of any reference to the questions implicit in Section 60(5) as to whether the objections came from persons who were entitled to the benefit of the covenant, whether they were made in good faith, and whether they were vexatious. The second is directed to the substance of the application for variation, and can only be considered it is established that the Tribunal has not been deprived on jurisdiction by Section 60(5) of the Act.

27. The Council has identified only six out of the 10 objections as having been made by benefiting owners; but it did not distinguish between those who were and those who were not entitled to the benefit of the covenant for the purpose of summarising the objections. I conclude that the Council only asked two of the three questions that are necessary to decide whether Section 60(5) applies, and failed to ask whether the objections came from benefiting owners. However, the nature of this hearing is not a review of the correctness of the Council's decision on the material before it. The Tribunal must be "satisfied whether or not that decision was, on the material before the Tribunal, the correct or preferable one": see Transport Accident Commission v Bausch [1998] 4 VR 249 per Tadgell JA at 263, and the cases there referred to.

28. The Applicant submitted that the grounds of objection to the Council were vexatious, referring to the grounds of objection as summarised by the Council, and provided her comments on each listed ground of objection.

29. The grounds of the objections as summarised have three themes. The first is that more than one dwelling on a lot would result in detriment to amenity. No supporting explanation of why this would be so appears. Second, objections are made to "multi-units". I find it difficult to characterise two separate dwellings, one fronting to Dendy Street and one to Curzon Street, as "multi-units". Although it is proposed to have the garage wall of the house fronting Dendy Street on the proposed boundary between the two proposed lots, that is a common case with single dwellings, and does not cause the proposed dwellings to "read" as "multi-units". Third, objection is made on the basis of property devaluation. If this ground were to be pursued, there would have to be evidence of it, as the impact for good or ill, if any, of a variation of covenant on any particular property entitled to the benefit of that covenant is not something that can be assumed.

30. I refer to the Council's treatment of the objections not because this Tribunal is concerned with whether the Council made the "right" decision, but because of the relevant tests to be applied under Section 60(5) of the Act, to which I will refer below.

Does the Tribunal have power to vary the covenant

31. Section 60(5) of the Act requires that in order for the responsible authority to have power to vary a permit, it must be satisfied as to two things. These are (leaving aside the question of owners who have consented in writing to the variation, which is irrelevant in this case):

? 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 variation; and

? If such an owner has objected, that the objection was neither vexatious nor made in bad faith.

32. Under Section 51(1) of the Victorian Civil and Administrative Tribunal Act, in exercising its review jurisdiction in respect of a decision, this Tribunal has all the functions of the decision maker. If the Tribunal is of the view that an owner of land benefited by the covenant would be likely to suffer any detriment of any kind under Section 60(5) as a consequence of the variation of the covenant, and if it is satisfied that an objection by a benefiting owner was neither vexatious nor made in bad faith, the Tribunal could not grant a permit which allowed the variation, any more than the Responsible Authority could.

33. Four objectors gave notice that they intended to contest the Application. They were Mr Madigan, of 186 Dendy Street, Mr and Mrs Burnside of 8 Balfour Street, Mr J R Pritchard of 10 Balfour Street, and Mr D Senior of 17 Curzon Street. Of these objectors, only Messrs Madigan and Burnside appeared to contest the Application.

34. To establish whether the objectors were entitled to the benefit of the covenant, I rely on the information provided by the Applicant to the Council, and used by it in processing the application, and a copy of the transfer to Mr and Mrs Burnside's predecessor, a transfer dated 28 January 1932 of Lot 31 on LP 9754, which was tendered by Mr Burnside. As the relevant covenant was created by a transfer dated 15 April 1929 in favour of the land then owned by the transferor, Mr and Mrs Burnside have the benefit of the covenant.

35. In identifying the material on which I rely in this way, I wish to make it clear that there has been no argument placed before me that the covenant in question is part of a building scheme under which the covenant is enforceable both by and against every owner on the subdivision. Such a scheme may be created where the original subdividers intended to ensure that only one detached house was built on each lot throughout the subdivision, and those purchasing the lots did so in the knowledge and on condition that they would enjoy the benefit of this limitation and in return, would be subject to the same restriction as everyone else who purchased a lot. All parties have treated this as a case of a covenant enforceable only by the successors in title of those persons who are shown as entitled to the benefit of the covenant in the transfer that created it.

36. Mr Pritchard has the benefit of the covenant according to the information supplied, but Mr Senior does not. Mr Madigan does not have the benefit of the covenant, as his property is located off the subdivision to which the covenant relates, being on the south side of Dendy Road.

37. Of the four persons who gave notice of intention to contest the Application, therefore, only one is both entitled to do so as a beneficiary of the covenant and chose to do so. This is Mr Burnside, who represented himself and Mrs Burnside. I have, however, also considered the statement of grounds filed by Mr Pritchard, as well as Mr Madigan's submission.

38. The grounds set out in Mr Burnside's statement of grounds dated 10 April 2000 were:

? We are a beneficiary of the covenant and do not want it varied.

? We will suffer as a result of a density build up in the area.

? We reserve the right to seek compensation for the loss of the privilege if the covenant is varied without our consent.

39. The first "ground" is a statement of fact. The reasons for this position were not given until the hearing. The second ground was taken to be related to the proposal as a precedent for other future development in the area. The third "ground" is not a matter relevant for consideration in this Application.

40. Mr Burnside stated that he had obtained a copy of the plan of subdivision, and ascertained that all lots but the original farmhouse site had the same covenant restricting development to a single dwelling. He and Mrs Burnside paid a premium for a covenanted property. They made a decision to come to an area with lower density, after having lived in Carlton and East Melbourne. He considers a low density is a great benefit. But they had not originally set out to buy into a covenanted area. He had come upon his present home within the covenanted area by good luck, when they bought in September 1999.

41. The Burnsides had moved from Hampton Street, near the shopping strip. In Hampton Street, Mr Burnside stated, he had been involved in a huge development next door, which went through many "minor amendments". He plainly did not regard the Planning Scheme alone as an effective protection for his residential amenity. He had searched for a low density area. The Council had considered the permit application for the two dwellings in October 1999 (as shown by the copy of the officer's report provided by the Applicant), and he had not been aware of the proposal, so had not had the opportunity to object to it.

42. Mr Burnside's primary concern was the precedent value of a variation. He saw this as opening the way to having two houses on each of the 52 lots in the subdivision. Although the subject land is distant from his property, and in the next street to it, there is a vacant lot at Lot 37, which fronts Curzon Street, but is diagonally opposite his property so that his south-east corner touches its north-west corner. Lot 32, next door to him, was for sale. Precedent value could therefore, he submitted, have a direct effect on his property.

43. Mr Burnside pointed out Lot 22 as an abuse of the system, being developed with two units. Lot 22 fronts to Marriage Road.

44. Mr Madigan, not being a beneficiary of the covenant, had not been sent a notice of the application for variation of it. There had been a local letter box drop, to which he had responded. He stated that his property, across Dendy Street, was lower than the subject land, and a two storey development would be above them and overlook them. He did not, however, review the decision to grant a permit for the development as such.

45. Mr Madigan stated that his family had lived in Brighton since the 19th century, and he was opposed to the demolition of single storey houses and replacement of them by multiple dwellings.

46. Mr Pritchard's grounds, stated in his notice to the Tribunal dated 13 April 2000, were that he would suffer from the variation in that:

? He bought his property in the knowledge that there was a covenant;

? The variation would lead to suffering from increased population, increased traffic and decrease in quality of life;

? The variation would encourage future development that would further erode the standard of living in East Brighton.

? The covenant was more relevant today to protect the future wellbeing and preserve the environment he valued.

47. The Applicant stated that she and Mr Ingberg had thought the plans out very carefully, to protect the interests of people who might be affected. She referred to her attempts to discuss the proposal with persons who had objected to it, and that a number of them had not looked at the plans to which they objected.

48. The Applicant submitted that not all the properties in the block are covenanted, with consequences for the future development of the area. She also pointed out that 26 out of the 28 beneficiaries identified as being entitled to enforce the covenant did not object to the variation. However, this is not a majority decision; one objection within the terms of Section 60(5) is enough to remove the Tribunal's power to permit a variation, and cause the Applicant to pursue the alternative methods of application to the Supreme Court or amendment of the Planning Scheme to vary the covenant.

49. In relation to purchase of the land subject to the covenant and then seeking to vary it, the Applicant submitted that there has long been provision for a person whose land is burdened by a restrictive covenant to seek a modification, or even discharge, of the covenant in certain circumstances.

50. I have already referred to the Applicant's submission that the objections were vexatious. She pointed out that to the north of this subdivision, along Marriage Road there is multi-unit development which is closer to Lots 17 and 16 (both objectors' homes) than the subject land. Mr Burnside, however, had enlarged on the grounds of the objection he made to the Council by his submission to the Tribunal. He expressed his preference for low density residential living, and his concern that this character would be lost if any variation to the covenant were permitted, because of the effect of a precedent being able to be relied on elsewhere on the subdivision. Whatever may be the situation with the grounds as summarised by the Council, this submission has to be considered as addressing a relevant issue.

51. In addition to presenting a written submission, the Applicant showed a series of slides. I have inspected the area. My inspection confirmed that Balfour Street was a very pleasant, well treed street, with houses well set back in attractive gardens. It was noticeably quiet in contrast to busy Dendy Street. Curzon Street was of not quite so high a standard in the quality of the houses, and the street trees were not so good. But both streets displayed uniform single homes with generous setbacks and front gardens. There is a fair sprinkling of two storey dwellings.

52. The present house at the subject land, fronting Dendy Street as it does, is not set back to Curzon Street in conformity with the houses that actually front Curzon Street. Its garage, in particular, constitutes an existing structure which breaks the generally wide setbacks to Curzon Street. It is readily perceived to mark the rear of a Dendy Street house, after which the houses associated with Curzon Street begin.

53. The difference between the proposed development and the existing buildings on the subject land, and also the house on the opposite corner, is that instead of being houses siding to Curzon Street with a side setback considerably less than the front setbacks of the houses actually fronting Curzon Street, the proposed rear dwelling would front to Curzon Street. It would be screened from view from further up Curzon Street by the existing garage, which would continue to be set forward of the proposed new dwelling, as it is in the case of the existing dwelling.

54. I accept that all properties adjoining or opposite the subject land except the lot adjoining to its west (167 Dendy Road) have the benefit of the covenant and do not object to the variation. These beneficiaries are the owners of Lot 7, which is the two-storey dwelling on the other side of the Curzon Street intersection, Lot 35 directly to the north of the subject land, and Lot 52, across Curzon Street opposite Lot 35.

55. Approximately half the lots on plan of subdivision LP 9754 are shown as having the benefit of the covenant. In Balfour Street, on the west side, 4 lots do have the benefit and 5 lots do not. On the east side, 5 lots do and 4 lots do not. On the west side of Curzon Street, 7 lots do, and 2 do not. On the east side, 6 lots do and 3 do not. In Marriage Road, 4 do and 4 do not. In Dendy Street, 3 do and 5 do not. Apart from Dendy Street, the pattern of benefiting lots is concentrated on the southern part of the subdivision, although there is a cluster of benefiting lots at the northern end around the intersection of Curzon Street and Marriage Road.

56. Of the lots fronting Dendy Road, Lots 2, 3, 4, 5 or 8 are not benefiting lots, reflecting the arbitrary nature of the impact of the covenant on the lots fronting Dendy Street. There are good reasons in terms of building form for proposing a two-storey development on the subject land, because of the development on the other side of the intersection. The selection of a corner site also enables two dwellings to be constructed with separate frontages, each addressing a different street, and neither appearing to add a second house to one street.

57. Only one instance of a breach of the covenant has been indicated. That is well distanced from the subject land; but it is on a lot that bears the similarity that it also faces a busy road on the outer edge of the subdivision. The covenant has therefore been well respected, and is intact and continues to serve its purpose as far as the two internal (north-south) streets are concerned. It continues to be valued by some of the people who have the benefit of it.

58. While it is correct that the law allows for variation or removal of a covenant, it is up to the person seeking to utilise the available mechanism to satisfy the tests provided to protect the beneficiaries of covenants. The person who buys land which is subject to a covenant which is still enforceable by another person has no entitlement to presume that the covenant will be varied. On the contrary, in order to take a transfer, a purchaser accepts the restriction in the covenant. This is still a covenant which is generally observed, and very strict tests apply to any application to vary it.

59. In relation to the Applicant's submission to the effect that the covenant has been rendered obsolete by planning controls, in my view this is misguided. Carabott v Hume City Council & Scuderi points out (at 279) that the nature of the inquiry in the covenant variation case is -

".........fundamentally different from that appropriate in an ordinary permit appeal because the former is concerned with any detriment whereas the latter, like the Good Design Guide, requires a balancing of advantages and detriments and interests between the landholders and the wider public interest."

60. The fact that the development proposal has already satisfied the requirements for assessment under the Good Design Guide and obtained a permit does not prove that no detriment would be suffered by the owner of a benefiting property. But the submission of the Applicant that no detriment will arise from the variation of the covenant is supported by the absence of objection from a benefiting owner to the particular form of development already permitted, and from any benefiting owner anywhere near the subject land.

61. With respect to persons having the benefit of the covenant who have not objected, the Tribunal is required by Section 60(5) of the Act to consider their position whether or not they have objected, and be satisfied that no such person will be likely to suffer any detriment of any kind from the variation: Grisby & Sansom v City of Greater Geelong (1997) 21 AATR 11 at 28.

62. In considering the proposal, the Tribunal must consider "whether it is satisfied to the requisite standard that the variation of the restrictive covenant would not, as a likelihood, cause any detriment" for the purpose of Section 60(5)(a) of the Act: Carabott & Ors v Hume City Council & Scuderi (1998) 22 AATR 261 at 279.

63. Nor need the detriment be of the type that would have an immediate physical impact on the person entitled to the benefit of the covenant.

64. Although likelihood of any detriment of any kind, including any "perceived detriment" is enough to bar a permit, it is for the Tribunal to determine whether any covenant beneficiary is unlikely to suffer any detriment; and there has to be an objective basis on which the Tribunal can be satisfied that there is unlikely to be any detriment: Carrabott v Hume, at 279, where the Tribunal's findings are summarised. The objective nature of the test is emphasised in the Tribunal's finding that -

"There must be a real chance or possibility that a detriment will result, mere assertion or belief will be insufficient."

65. The test for perceived detriment is amplified further at p.279, paragraph 56 of the decision:

"In our view, the expression `will be unlikely to suffer any detriment' in s 60(5) of the Planning and Environment Act 1987 does not necessitate a finding that detriment will occur as a probability, rather it is sufficient that there be a possibility, which is neither fanciful nor remote, that a detriment may occur."

66. I do not consider that any benefiting owner who is not an objector represented at this hearing is likely to suffer any detriment from the proposed variation.

67. It is relatively easy to come to that conclusion with respect to the benefiting owners who made no objection to the permit application. All were notified of the application, and if they did not consider that they would suffer any detriment justifying an objection of their part, I see no reason on the material before me to take the matter any further.

68. In the case of the objections summarised by the Council, I do not consider that any of them, expressed in that form, indicate a "real chance or possibility" that the variation would result in detriment to any person entitled to the benefit of the covenant.

69. All objectors who were notified of this Application for Review and who did not pursue their objection before the Tribunal have made a choice based on their subjective reading of the effect of the variation on them, to the effect that they do not now wish to oppose the variation.

70. I am satisfied that the material before me does not show than a person entitled to the benefit of the covenant, other than the persons who gave notice of their intention to contest this Application, objected on grounds that would exclude the Tribunal's jurisdiction under Section 60(5) of the Act. Nothing emerged at the hearing or from my own inspection of the area that I regard as requiring me to investigate the position of any such benefiting owner any further.

71. The second aspect of Section 60(5) of the Act is the one on which attention must be focused in this case. There are people having the benefit of the covenant who have objected, two of whom gave notice of intention to contest the Application for Review, and one of whom appeared and did so. Unless the Tribunal is satisfied that the objection of an owner of land benefited by the covenant was vexatious or not made in good faith, the Tribunal could not grant a permit which allowed the variation: Section 60(5)(b).

72. With respect to Mr Madigan's objection, the Applicant questioned the role that a non-beneficiary could play in this Application.

73. The Council had treated Mr Madigan the same as it had treated beneficiaries who objected to the application. There is no special restriction on persons who may object to the variation of a covenant. Under Section 57 of the Act, "any person who may be affected by the grant of a permit" may lodge an objection. Section 60 requires a Council to consider all objections which it has received. But little weight could be given to an objection from a person who did not identify how he could be affected by the variation, which is the subject of the application (as opposed to the proposed development) in the statement of how he would be affected by the grant of the permit as required under Section 57(2) of the Act. Further, Section 60(5) does not extend to objectors who are not benefiting owners.

74. Mr Madigan claimed to be affected by the proposal. He has been given all the notices consequent on the lodging of an objection, and has himself given a statement of grounds, without anyone having objected to his standing to take part in the hearing as a party to the Application until that point. The Tribunal did not exclude him on the ground that he lacked standing, but heard his submission and considered it in the context of the Application.

75. His objection, however, faced the difficulty that to be relevant, it had to be related to the subject-matter of the permission required. He had to show that he would be adversely affected by the variation of a covenant of which he was not a beneficiary. The variation of a covenant is primarily a matter of private rights, and it will be seldom that anyone who is not entitled to be benefit will be affected by it. It could be argued that a person who lives near an area affected by a covenant may derive some benefit from the fact of the covenant, if its continuance enhances the amenity of the area generally. The temptation is to confuse the variation with the development that may or would result from it, and which is the subject of a separate permission with separate rights of objection.

76. The objection to the proposed development from someone other than a beneficiary entitled to the protection of the covenant was properly directed to the application for the development permit, so that in pursuing it here, Mr Madigan is trying to have a second bite of the cherry. The appropriateness of the development under the Planning Scheme has already been determined by the issue of a permit, without any objector having pursued an objection either at the Council or by reviewing the Council's decision.

77. On the merits of Mr Madigan's objection to the development, Dendy Street is a wide and busy street, and I do not accept that the permitted development would affect his property on the other side of the street by overshadowing, or by overlooking it in a way that differs from the existing situation with the two storey house on the other side of the intersection to the subject land.

78. An examination of Mr Madigan's objections indicates that the proposal he is objecting to is really the proposed development, not the variation of the covenant. The covenant does not stop the owner of the subject land demolishing the house on it, and building a two-storey house, or for that matter, a four storey house (to the extent that this would be permitted by Vic Code 1). Mr Madigan's objection to the demolition of existing houses in principle is not related to the covenant, and has not been seen by the Planning Authority to have any particular merit in this area, as the Planning Scheme does not recognise this area as one where demolition should be subject to control.

79. Two-storey residences are not restricted by the covenant. There are a number of them in the covenanted area, and beyond it, including the south side of Dendy Street opposite the subject land.

80. Indeed, the building opposite the subject land on the other corner of Curzon Street is a very large red brick dwelling, constructed close to the Curzon Street boundary - closer than the proposed rear dwelling permitted on the subject land would be. In my opinion, the proposed development would be of a more attractive appearance on both frontages than this building, which nevertheless accords with the covenant.

81. Turning to the objectors who do have the benefit of the covenant, and dealing with Mr Pritchard's grounds first, as Mr Pritchard's property is 10 Balfour Street, or Lot 30 on the plan of subdivision, I see no reason why anyone living at the subject land should have any impact at all on his property. There is no reason as far as anyone has suggested why a person living on the corner of Dendy Street and Curzon Street should add to the traffic in Balfour Street. Nor does it follow that the population living in two two-storey houses on the subject land would be increased beyond, say, the number of persons living in the large two-storey house across the street from it.

82. Privacy concerns no not arise from the subject land as far as 10 Balfour Street are concerned, or any other property, for the reasons addressed by the Council in relation to the development application. In any event, any two-storey single dwelling would be subject to the same criticism, without any redress under the covenant.

83. I see no justification for an assertion that the proposed two dwellings on the corner of Curzon Street would erode the standard of living in the north end of Balfour Street, or anywhere else. It seems to me that this objection could be fairly taken as addressed to a fear that one variation may lead to others, in an uncontrolled way and without the merits of the individual proposals being considered.

84. When the power to vary or remove covenants was first given to responsible authorities under the Planning and Environment Act 1987, the stringent limitations now contained in the Act were not immediately included. They were inserted later by amendment to the Act in 1993, responding to the concerns expressed about the use of the power in its original form. Any variation of a covenant must now be subject to very careful consideration, on the most stringent tests.

85. I find that Mr Pritchard is unlikely to suffer detriment of any kind as a result of the variation of the covenant as proposed. As he has not pursued his objection, I consider that that is the only finding I need to make with respect to his objection under Section 60(5).

86. This leaves Mr and Mrs Burnside's objection. Mr Burnside has alleged only one potential detriment from the actual variation proposed, which is suffering as a result of density build up. He has not stated how he would suffer from this, given the separation between his own property and the subject land, other than by way of his main objection, which was to the impact that the variation may have indirectly, if a similar variation were to be allowed on one or more of the lots near his property, or if similar variations were generally allowed through the subdivision.

87. The Applicant was the only party who sought to assist the Tribunal by referring to previous decisions relevant to the issues. The case to which she referred was the leading one to be determined by the Tribunal under the present legislation, and refers to all the principal cases up to that point. I have also had regard to my own decision in Pateras v Monash City Council & Knowles (1998/47372, noted 3 VPR at 246).

88. In Grisby & Sansom v City of Greater Geelong (1997) 21 AATR 11 at 20, 28, the Tribunal (comprised by Deputy President McNamara and Mr Gould) held that to be deprived of the environment of single dwellings on liberal allotments, when there was a widespread perception in the community that residents in an area of that nature enjoyed the highest available form of residential amenity, constitutes either a detriment or a perceived detriment. It follows that if a person entitled to the benefit of the covenant objects to the variation of the covenant because it allows a higher dwelling density into the area, and the objection is neither vexatious nor in bad faith, this is a relevant detriment. I do not, however, consider that a second house on the subject land would deprive the Burnsides of the environment of single houses which they enjoy. The subject land is too far away, and addresses different streets.

89. The test is that the Tribunal must be satisfied before granting a permit that the detriment contended for would be improbable. There is no burden upon an objector to prove that the detriment would be probable: Grisby & R Sansom v City of Greater Geelong (at 21).

90. On the facts on this case, I do not accept that increasing the number of houses on the corner of Dendy and Curzon Streets by one would cause any perception of an increase in dwelling density to Mr and Mrs Burnside, in the northern part of Balfour Street.

91. While it may well be true that "the more medium density developments that exist in a particular development, the more likely it is that a new proposal will obtain a permit", so that permitting medium density development in a neighbourhood becomes incremental (see Grisby's case at 28), it would be unrealistic to ignore the limitations on the granting of permits for a variation of covenant, and the differences between the location of the subject land and the situation in the internal streets.

92. I do not regard this variation as creating a precedent that would cause other lots subject to the same covenant elsewhere in the subdivision to be either more readily made the subject of variation orders, or more easily developed for forms of housing more intensive than two dwellings. The subject land is on the fringe of the covenant area, like the only other lot on the subdivision with more than one dwelling on it. That precedent is already established, for what it is worth; but in my view the more important issue is the particular location of the subject land.

93. The other lots along Dendy Street that have the benefit of the covenant are Lot 1, on the extreme western edge of the subdivision, and Lot 7, which has the two-storey house opposite the subject land. Neither of those has opposed the variation. The character of development in Dendy Street is in my view much more related to the nature of Dendy Street generally, including the residential development opposite the subject land, than it is to the covenant over this subdivision, which as far as the evidence of benefit in this case is concerned, has little relevance to or impact on Dendy Street.

94. The situation is otherwise in the internal roads, where the number of benefiting lots in each road is much higher, and the influence of Dendy Street is more distant. I do not consider that the variation sought for the subject land could be regarded as a precedent that would cause a rash of further variations in the internal roads. Those lots are not on major roads, so that the quality of quiet and private living that is often named as a benefit of an intact row of detached houses on sites big enough for side setbacks and front and rear gardens can be expected to be better enjoyed there than would be possible on Dendy Street. Importantly, they simply do not have the characteristic that allows two dwellings to be constructed each with a frontage to a different street, so that they appear as two independent dwellings, maintaining an appearance consistent with the covenant restriction.

95. Having regard to the limited variation sought and what I consider to be the non-existent impact as a precedent that the proposed variation could have on the area within which Mr and Mrs Burnsides' property is located, I am accordingly satisfied that there is no "real chance or possibility" that the variation would result in detriment to Mr and Mrs Burnside. In my view, the only direct precedent value that this variation could have would be related to corner blocks in Dendy Street, located on corners of streets other than those in which objectors who were benefiting owners lived. But each case ultimately comes down to the merits and circumstances of the individual properties concerned.

96. The fact of a covenant does not mean that the area cannot change. Certain expectations about how people intend to live on their sites may arise from the limitation of the use of a large lot to one dwelling, even though setbacks, bulk and the like are not specifically protected by the restrictive covenant. Many of the houses in the affected streets appear to date from the same period. Common patterns as to site layout have emerged. But a greater variation in styles is to be expected over time, as older homes are extended or replaced to meet the requirements of the people owning them from time to time. There is considerable scope for further development within the terms of the covenant.

97. The impact of the variation on the continuing covenant, varied to allow an additional house, would be that the site would remain subject to the modified covenant. It would not remove the covenant, or open the floodgates to other forms of development on the subject land or elsewhere in the subdivision.

98. But as Mr and Mrs Burnside are benefiting owners who have objected, and continue to object, the Tribunal does not have the power to vary the covenant merely because it is satisfied that detriment is unlikely under Section 60(a). The Tribunal can only vary the permit under (b) if it is satisfied that the objection, once made, is vexatious or not made in good faith.

99. The test applied by Mr Byard in Wilde v City of Moonee Valley, McKay & Ors 18 AATR 145 at p.163 to whether an objection was "vexatious" was whether it was vexatious both in the "ordinary sense", quoting the Macquarie dictionary definition, the relevant part of which would be "instituted without sufficient grounds, and serving only to cause annoyance", and also in the sense used in vexatious judicial proceedings, quoting Roden J in Attorney-General for NSW v Wentworth (1988) 14 NSW LR 481 at 491. This latter test is the stricter of the two, and is the one I will adopt, as being the leading case on this expression as used in a Victorian statute. It was recently applied in Attorney-General for Victoria v Kay [1999] VSC 30 (23 February 1999), by Eames J and in Attorney-General for the State of Victoria v Lindsay (unreported, 16 July 1998) by Kellam J. The test is:

"1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless..."

100. There is no ground on the material before the Tribunal which would cause me to consider any but the third category as possibly relevant.

101. In Grisby & R Sansom v City of Greater Geelong (at 29) the Tribunal dealt with the issue of "vexatiousness" simply by finding that the objectors had a good case, so that by definition, their objections were not vexatious.

102. In Mentzos v City of Monash (Application no.1998/71575, unreported, a decision of Messrs Walker and Barr, dated 17 March 1999), the Tribunal considered (at p.5) whether there was any evidence to suggest that the objections received from benefiting owners were vexatious or not made in good faith. It was found that there was no evidence to suggest that the real ground of their objection to the application was anything other than a genuine desire to maintain the benefit of the covenant. I accept that Mr Burnside's objection is similarly motivated. But going on, the Tribunal in that case was not satisfied that the owner of any land benefited by the covenant would be unlikely to suffer detriment, so that the objection could not be vexatious. In this case, I am satisfied that the owner of any land benefited by the covenant would be unlikely to suffer detriment.

103. Unlike the general test in Section 60(5)(a), which requires consideration of whether the owner of any land benefited would be unlikely to suffer detriment, in Section 60(5)(b) the subject of consideration is the particular individual owner who has in fact objected. It is the objection of the particular person which falls to be assessed. Whether the objection is vexatious must therefore depend the particular grounds of objection raised by that person, relating to his or her own circumstances.

104. In the present case, although Mr and Mrs Burnside's opposition to the proposal is sincere, I find their objection to be "obviously untenable or manifestly groundless" to the point where in my view, it should be found to be "vexatious" in the third sense defined in Attorney-General for NSW v Wentworth. That is, there was no "real chance or possibility" that the variation would result in detriment to Mr and Mrs Burnside. The possibility of any detriment arising as a result of the matters raised by Mr and Mrs Burnside is in my opinion remote, for the reasons set out above.

105. I therefore find that the Tribunal is not debarred from varying the covenant. As I have already found that the proposed variation will not cause any detriment to any benefiting owner, or to Mr Madigan, there is nothing to prevent a permit being granted for the variation.

106. I will order the grant of a permit accordingly. The variation will be limited to the development for which a permit has already been issued, in accordance with the Applicant's expressed wish.