Consideration is. . . confined to the question of whether there will be any detriment suffered by the beneficiaries of the covenant by the removal of the benefit afforded by the covenant. There is no requirement to consider what detriment if any would be suffered by persons who are not beneficiaries of the covenant, such matters being more appropriately considered, if and when there is an application for development on the land, at that particular time.[4]

1. I do not consider that the recent changes to clause 52.02 alter this principle. I construe the "interests of affected people"[5] in an application such as this as a reference to beneficiaries of the covenant. The reason I adopt this view is that, fundamentally, clause 52.02 regulates the removal of a restriction created in property law and that legal framework affords benefit to only identified beneficiaries. In the absence of any broader and explicit rights being granted to non-beneficiaries via the planning system (in particular, the Planning and Environment Act 1987) I do not consider it justified to extend consideration of detriment to non-beneficiaries by the removal of the covenant where there is no concurrent use/development application.

1. The covenant is worded in a way that conveys the benefit of the covenant to only those land owners whose properties were transferred out of the parent title (i.e. original development parcel) after the transfer of the subject land from the initial developer. Based on the date of settlement of the subject land, I consider the benefit attaches to properties transferred out from 7 November 1960.
2. There was initially some doubt about whether 100 lots removed from the parent title on 3 June 1959 would be beneficiaries. On review, I agree with the applicant's representatives that these properties are not beneficiaries of the covenant in question. Although the original developer may not have sold these lots to separate purchasers until after the subject land, I consider that their removal from the parent title before the subject land prevents them from being beneficiaries of the covenant on the subject land having regard to the plain wording of the covenant.
3. Mr Gray took me through the title documents for the subject land and titles for the properties transferred after the subject land. I am satisfied on the basis of this documentation and the investigations of the applicant's lawyers who specialise in title searches that there are only 5 beneficiaries of this restrictive covenant, namely Galvin Estates Pty Ltd, the original development company - now de-registered, Ms Susan Murphy, Mr Fincke, VicTrack and (the former) Melbourne Transit Authority.
4. While it is somewhat unusual to have such a small number of beneficiaries in the context of a large subdivision, this is a consequence of the subject land being one of the last to be 'carved off' the parent title.

1. Given the date the covenant was created, section 60(5) of the Planning an Environment Act 1987 governs my consideration of this application.[6] In summary, it requires me to be satisfied that:
   1. All beneficiaries would be unlikely to suffer detriment of any kind (including perceived detriment) as a result of the removal of the restriction; and
   2. If a beneficiary has objected to the grant of the permit, the objection is vexatious or not made in good faith.
2. Importantly, the first limb of section 60(5) expressly excludes beneficiaries who have consented in writing to the grant of the permit.[7]

1. I regard the letter of withdrawal by Mr Fincke as tantamount to consenting in writing to the grant of the permit.[8] This is the only logical consequence of the withdrawal of his objection and would have been a fact he was aware of at the time he signed the letter.

1. To my mind, the more pertinent question is whether his withdrawal was precipitated by duress. The reason I am concerned about this is that other objectors (who I have confirmed are not beneficiaries) submitted copies of letters they received from Mr Piesl to the Tribunal. These letters advised objectors that if they would agree to the removal of the covenant, the applicant would not use the subject land for short term tenants, homeless people or refugees and would not seek to remove the covenant from the adjoining property at No. 5 Iluka Court. He failed to advise the recipients that if the land was going to be used for more than a single dwelling, such use would require a planning permit and they may be entitled to object.
2. This is a risky course of action. Section 60(5) is a protective provision, reinforcing the interests of beneficiaries to a covenant. In my opinion, exclusion from section 60(5)(a) by virtue of a beneficiary's consent is predicated on the voluntariness of such consent. Therefore, if it is obtained under duress from the applicant, the Tribunal would nevertheless be entitled to consider that beneficiary's interests under the balance of the provision.
3. There is another reason why an applicant who makes threats; whether explicit or veiled; whether genuine or not; to trigger the withdrawal of an objection does so at their own peril. Section 87 of the Planning and Environment Act 1987 empowers the Tribunal to cancel or amend a permit on the grounds of a material misstatement or concealment of fact or material mistake in relation to the grant of a permit. I consider that in appropriate circumstances, obtaining an objector's withdrawal under direct duress may be capable of satisfying one of these grounds.
4. Given my concerns in this case, I requested Mr Piesl give sworn evidence at the hearing about the dealings he had with Mr Fincke. He gave evidence that:
   • After being made aware of Mr Fincke's objection, Mr Piesl visited him at his residence. Mr Fincke told him that his objection was influenced by Mr Bethwick, a local resident who had been campaigning for local residents to object to the removal of the covenant;
   • Mr Fincke asked what Mr Piesl was proposing to build on the land. Mr Piesl responded that he could stay on the land, could sell it with the covenant removed or could potentially build three units if granted a permit;
   • Mr Piesl recounted that Mr Fincke then responded that he 'did not care' what Mr Piesl did with the property so long as he did not construct a multi-storey development. Mr Piesl stated that on the basis of his answer to this, Mr Fincke withdrew his objection; and
   • He was of the belief that Mr Fincke's withdrawal was not affected by any threat or duress applied by him.
5. At the same time, Mr Piesl gave evidence that when he advised Mr Bethwick of his alternative proposal for the land[9], he said something of the effect "don't do this to me" and then "I will get Mr Fincke to withdraw". This indicates that Mr Piesl's representations were in fact regarded as a threat by some would-be objectors.

Assessment of detriment to beneficiaries in absence of objection

1. Had there been no objections by any beneficiary, I would have found that all beneficiaries would be unlikely to suffer detriment of any kind (including perceived detriment) as a result of the removal of the restriction. Although this area is largely intact with substantial single homes on larger allotments, the two private beneficiaries are distinctly remote from the subject land and there are some examples of more than one dwelling constructed on a lot closer to these beneficiaries than the subject land.[10] In addition, Ms Murphy owns land with two units on.
2. Mr Fincke owns land streets away, separated from the subject land by some 120 metres, intersected by the rail reservation with no direct pedestrian or vehicle routes between. Given the lack of connectivity (either visual or physical) between both beneficiaries' properties and the subject land together with inroads made into developing this part of the original estate for more than one dwelling on a lot, I consider that they would be unlikely to suffer detriment of any kind by the removal of the covenant. I am also conscious of Tribunal and Court decisions setting a standard that "there must be a real chance or possibility that a detriment will result, mere assertion or belief will be insufficient"[11].
3. In addition, issues of built form, layout, density and the like can be raised and considered if and when there is a future application for a planning permit for more than one dwelling on the subject land.
4. In the circumstances before me (including the extent of separation in question) I do not consider either statutory authority could be affected detrimentally by the potential development of the land for more than one dwelling or for use for non-residential purposes. The original developer company has now been deregistered and therefore appears to have no ongoing benefit from the covenant.

Section 60(5)(b) as a potential obstacle if objection is valid

1. Although I have made a finding that detriment was unlikely, had Mr Fincke's objection not been withdrawn, I would have had difficulty finding that the second limb of section 60(5) was satisfied. Demonstrating vexatiousness or bad faith separate from the issue of detriment is a high hurdle.
2. There is no evidence before me to suggest that Mr Fincke's objection was anything other than genuine and made in good faith. His grounds of objection were sufficiently specific, including concerns about impacts on neighbourhood character, a shift away from family homes in a garden setting and setting a negative precedent. In his objection, Mr Fincke expressed the view that the covenant was not obsolete in that it was still fulfilling its original purpose.

1. There is commonly a gap in the information made available to the Tribunal in dealings between parties to permit applications. Such dealings are most commonly peripheral and generally irrelevant to the issues requiring the Tribunal's determination. However, in circumstances where the Tribunal has information that suggests that pressure may been applied to a beneficiary, it is open to the Tribunal to take steps to satisfy itself that the decision it is making is not susceptible to being set aside.
2. In the circumstances, before making a final determination, I propose to allow 14 days for Mr Fincke to advise the Tribunal if he wishes his original objection to the responsible authority to be reinstated having regard to any duress he may have been subject to. Alternatively, he could confirm his consent to the grant of a permit.
3. I will consider any response prior to making a final determination on the application.

[1] I have considered general planning policies in the scheme relating to neighbourhood character, urban consolidation and the like.

[2] Reflecting a current objection from Mr Fincke at the time.

[4] [2004] VCAT 110, a decision of Member Rickards as she then was.

[5] Referred to in the decision guidelines.

[6] This is referred to in relevant provisions of the planning scheme including clause 65.

[7] Not more than three months before the permit application was lodged.

[8] A similar observation was made in Bingham v Wyndham CC [2004] VCAT 875. In the circumstances, Senior Member Byard considered that the objection should be treated as if it was never made.

[10] Similar considerations influenced Senior Member Rickards in Nguyen v Brimbank CC [2010] VCAT 1558 when determining that section 60(5) was satisfied.

[11] Scuderi v Hume CC [1998] 22 VCAT 334.