[2005] VCAT 2769

A. This application for review is granted. The restrictive covenant appearing in Transfer of Land 930376 dated 26 February 1920 as it applies to Lot 4 on Plan of Subdivision No. 7013 being the land in Certificate of Title Volume 04395 Folio 925 is varied to read as follows:

1. That the said land shall not be used for other than residential purposes.

2. That not more than two dwelling houses (including outbuildings) can be built on the land and any portion thereof located on the rear (northern) 15.70 metres of the lot 4 on plan of subdivision 93076 must not exceed one storey in height.

3. If more than one house is built on the land, then that closest to Kara Grove, or both of them, must front Kara Grove.

4. No sand is to be removed from the land except in the course of excavation for the purpose of providing footings and foundations for buildings.

The restrictive covenant in Transfer of Land 1028104 dated 30 December 1921, insofar as it applies to those portions of Lot 1 on Plan of Subdivision No. 7013 as are now in Certificate of Title Volume 10640 Folio 084 is varied to read:

1. The said land must not be used for other than residential purposes.

2. No building or part of a building erected on the land is to exceed one storey in height.

3. No sand shall be removed from the land except for any surplus sand derived from the digging of footings or foundations for a building.

This permit will expire if the above restrictive covenants in their modified form are not registered in the Office of Titles within two years of the date of this permit.

B. The Responsible Authority is directed pursuant to Section 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order A above.

_________________

RUSSELL BYARD

SENIOR MEMBER

Mr. Peter Soding, town planner, of Tixxis Pty Ltd appeared for the responsible authority. He presented written and oral submissions.

Mr. David Pumpa, barrister, appeared on the instructions of McDonald Slater & Lay Solicitors for the applicant, Ms. Kellas. He made oral submissions.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.77 of the Planning and Environment Act 1987 (PE Act) for review of a decision of the Responsible Authority to refuse to grant a permit.

Residential 1 Zone and subject to a Design and Development Overlay Schedule 1 and Schedule 7 under the Kingston Planning Scheme.

The original application sought the removal of a restrictive covenant affecting Lot 4 and the removal of restrictive covenants the portions of Lots 1 and 2 that form part of the review site. The application for review reflected this by giving the use or development for which permission was sought as "to Remove the Restrictive Covenant from Title for this site" (more correctly this should have said "removal of the restrictive covenants").

For reasons that will be discussed below the applicant now seeks modification, rather than removal, of these three restrictive covenants. The modification in relation to Lot 4 now sought is proposed to read:

That the said land may not be used for other than residential purposes and that no more than two dwelling houses (including the usual outbuildings) will be built thereof and that no dwelling house or part thereof built on the land occupying its rear 15.70 metres (between the extension of the southern side boundary of Lot 1 on Plan of Subdivision No. 7013 is to consist of more than a single storey building.

And, in relation to the covenant affecting the land being the rear 5.22 metres of the said Lot 1, the proposal is now that the covenant should read

"the said land may not be used for other than residential purposes and that no building built on the land shall consist of more than a single storey building."

Mr. Pumpa sought amendment to the permit application, and to the application for review accordingly. No objection to this course was raised by the responsible authority. On the basis that this lack of objection, and on the basis that the modified version represents a considerable reduction from the original proposal for removal of restrictive covenants (on the notion that the greater includes the lesser) I granted this amendment.

1 This case concerns a proposal by the owner of the review site for the development of the land. The proposed development is inconsistent with existing restrictive covenants affecting the land. She therefore seeks modifications to the covenants, sufficient to allow the development to proceed (subject to other planning permissions that would be necessary).

2 The responsible authority refused the application (which was then for complete removal of the restrictive covenants) on the following ground:

1. That Council is not satisfied that the removal of the covenant would not cause detriment of any kind to owners of properties benefiting from the covenant, pursuant to Section 60(5) of the Planning and Environment Act 1987.

3 An accurate description of the review site involves some complications. However, the main part of the site is Lot 4 on Plan of Subdivision 7013. This lot has a frontage of 15.24 metres to the north side of Kara Grove. That is on the basis that Kara Grove runs east to west. In fact it is on a bearing away from through east to west, but it is simpler to assume that it does run east to west, and that Nepean Highway runs north to south.

4 Kara Grove forms a "T" intersection with Nepean Highway. It runs off to the west from the Nepean Highway to a dead end at the foreshore of Port Phillip Bay.

5 Lot 3 on the relevant plan of subdivision is located on the north-western corner of the intersection. It is a frontage of 18.29 metres to Nepean Highway and a side abutment of 36.58 metres to the north side of Kara Grove. It is not part of the review site in this case, although its rear boundary (of 18.29 metres) forms the southern most segment of the eastern side boundary of Lot 4 and, indeed, of the review site.

6 Lot 4 is a rectangle with an area of 778 square metres. The review site is that rectangle plus two smaller rectangles adjoining the northern two-thirds of the eastern boundary of Lot 4.

7 In the original subdivision Lots 1, 2 and 3 were arranged north to south at the eastern end of the land then being subdivided with frontages to the western side of Nepean Highway. Lot 4, with its frontage to Kara Grove, stretches back across the rear of these three allotments so that its eastern side boundary forms the rear of western boundary of each of them.

8 The review site as a whole now represents a fat upside down "L" with Lot 4 as the stem of the "L". A strip across the rear of Lot 1, and a strip across the rear of Lot 2, each adjoining the common boundary with Lot 4, have been acquired by the present owner of Lot 4 by adverse possession. These two strips of land across the width of Lots 1 and 2, and with respective depth of 5.22 metres and 5.40 metres have areas of 81.94 square metres (Lot 1) and 92.124 square metres (Lot 2) representing a total addition to the review site of 174.074 square metres. This addition is upon the area of Lot 4 being 778 square metres. Thus the area of the whole parcel constituting the review site is a shade over 952 square metres.

9 The original subdivision appears to have been registered, and the new titles issued, before 12 May 1920. It was a seven lot subdivision on land between the Nepean Highway and the Port Phillip Bay Foreshore on the northern side of what has become Kara Grove. It appears from the evidence that, at that time, there was a single substantial dwelling on the land and that this was a subdivision of the grounds of that dwelling. The original dwelling still stands on Lot 5.

10 As I have said, Lots 1, 2 and 3 run north to south along the Nepean Highway frontage. Lots 4, 5 and 6 are arranged, east to west, along the northern frontage of Kara Grove.

11 There is an existing substantial house on Lot 4. It is located near the centre of the block, and thus substantially opposite the rear of Lot 2. Ms. Kellas wishes to demolish this house, and erect two single storey houses on the parcel of land constituted by Lot 4 and the two parts of Lots 1 and 2 respectively.

12 This purpose is obstructed by existing restrictive covenants applying to each of the pieces of land constituting the parcel or review site.

13 The restrictive covenant affecting the relevant part of Lot 1 is the same, in its terms, as that affecting the relevant part of Lot 2. However, the restrictive covenant in relation to Lot 4 is in similar, but different and more restrictive terms.

14 The restrictive covenant in relation to Lot 4 is found in Transfer of Land 930367 dated 26 February 1920. This Transfer of Land refers to the land being transferred as Lot 4 on the Plan of Subdivision and to it having been part of the parent title of the land that was so subdivided being Certificate of Title Volume 3912 Folio 365. The covenant binds the purchaser and her successors in title in favour of the vendor (John Lamont Dow who created the subdivision) "and transferees registered proprietor or proprietors for the time being of the land untransferred in the said Certificate of Title". The said Certificate of Title is the parent title. The land untransferred at the time was Lot 5 with the original house on it and Lots 1 and 2. Thus it is the owners of Lots 1, 2 and 5 that have the benefit of the covenant affecting Lot 4. The terms of that covenant are:

1. That the said land here by transferred shall not be used for other than residential purposes.

2. That only one dwelling house (including out-offices) shall be built thereon.

3. That no house shall be built thereon except fronting Kara Grove aforesaid.

4. That no sand shall be removed from the land transferred.

15 Ms. Kellas wants to construct two dwellings houses and they cannot be accommodated on the review site without a substantial portion of the second one being upon Lot 4.

16 I have said that the restrictive covenant in relation to Lots 1 and 2 are in the same terms, one compared with the other. Although the rear portions have been excised off these allotments, and acquired by Ms. Kellas by adverse possession, the covenants still affect the whole of each of those lots, as originally laid out, including the lost rear portions.

17 The terms of the covenant relating to Lots 1 and 2 are found in Transfer of Land 1028104 dated 30 December 1921. As with the other covenant, it is in favour of the vendor and his heirs including the registered proprietor or proprietors for the time being of the land untransferred from the original parent Certificate of Title. As this transfer post dates the other one, Lot 4 does not enjoy the benefit of the covenants on Lots 1 and 2. In fact, the only land enjoying that benefit is Lot 5.

18 The terms of the covenant in relation to Lots 1 and 2 are as follows:

1. That the said land hereby transferred shall not be used for other than residential purposes.

2. That no house shall be built thereon excepting fronting Point Nepean Road.

3. That no sand shall be removed from the land hereby transferred.

19 Nepean Highway was formerly known as Point Nepean Road.

20 The difference between the covenants affecting Lots 1 and 2, as compared with that on Lot 4, is (of course) that there is no restriction on the number of dwelling houses that can be built on Lots 1 and 2 whereas Lot 4 is restricted to one dwelling house.

21 Although the covenant restricts the number of dwelling houses on Lot 4 to 1, it imposes no restriction on the location or size of that one dwelling house either as to its area, or as to its height. So far as any restriction imposed by the covenant is concerned, it would be possible to built a dwelling house over the whole of the rear 15.7 metres of Lot 4 being the part opposite the rear of Lot 2 or, indeed, the whole of Lot 4; and such dwelling could be of 2, 3 or more storeys. It follows that the covenant, whatever benefit it offers the owners for the time being of Lot 1, and whatever detriments it might protect them from, does not protect rearward views from Lot 1 so far as they might be impinged upon by any building on Lot 4, including on the rear portion of Lot 4.

22 The permit application was received by the responsible authority quite some time ago on 29 August 2003.

23 The responsible authority required notice to be given of the permit application pursuant to s.52 of the Planning and Environment Act 1987 (PE Act).

24 The responsible authority required notice to be given, not only to the owners of land enjoying the benefit of the restrictive covenants in question, but others in the locality. That was a mistake in that only the owners of land enjoying the benefit are relevant for this purpose. Others might be included in the event of a subsequent application for a permit for subdivision or for two or more dwellings on the land, but nothing of that sort has been applied for so far.

25 I do not know when notice was given, but two objections were received, although not until 26 November 2003.

26 One of the objections was from Linas Kasparionas of 43 Station Street, Aspendale. It appears from the terms of this objection that the objector has misunderstood what the application is about. The objection seems to centre on questions in relation to access along Kara Grove. However, and in any event, the land that this objector does not enjoy the benefit of any of the covenants in question. For this reason, I will disregard it. However, it is better that responsible authorities require notice to be given to potential objectors who own land enjoy the benefit of the covenant (unless other permissions for which others might be legitimate objectors are made at the same time). Giving notice to people who are not relevant is only likely to cause them to lodge objections and seek to participate under the impression that they have relevant rights but do not, in fact, exist.

27 The other objection is from Kevin Campion and Karina Campion of 68 Nepean Highway, Aspendale. 68 Nepean Highway, Aspendale is, in fact, Lot 1 on the relevant Plan of Subdivision or, at any rate, that part of Lot 1 not lost to Ms. Kellas by means of her successful adverse possession claim.

28 It will be relevant to consider this objection so I set out its terms (I have added the interpolation in square brackets).

We hereby object to the proposed development at No. 1. Kara Grove, Aspendale, particularly the erection of a dwelling on proposed rear site, as this was seriously restrict our view of the bay and lesson (sic) enjoyment of our property which adjoins 1 Kara Grove. [1 Kara Grove is Lot 4.]

However, we would reconsider our objection if the applicant would restore boundary fence to the position in accordance with C of T vol 4395 fol 925 at maximum permissible height.

We would require applicant to impose a restrictive covenant restricting the rear dwelling to single storey.

29 This objection contains some misconceptions. Insofar as it purports to object to a development constituted by the erection of a dwelling "on proposed rear site", it is premature. The proposal is not for the erection of a dwelling, but for the modification (originally removal) of restrictive covenants. The appropriate time for an objection of that sort would be if and when application is made for a permit for such a development. After all, if and when such an application if forthcoming, it may or may not involve construction on the rear of the site, and may or may not restrict views of the bay from the Campion property.

30 The second half of the first sentence can be seen to be ambiguous where it expresses concern in relation to "this would seriously restrict our view of the bay and lesson our enjoyment of our property". The only specific concern here referred to is the question of the view of the bay. As already observed, the restrictive covenant on Lot 4 restricts dwelling house to one but does not do anything to protect views of the bay.

31 Mr. Soding suggested that it is necessary to look at the position that currently exists, with the existing dwelling house in the middle of the lot. In fact, it is easier to clearly assess the affect of the covenant by looking at it at the time the covenant was created when Lot 4 was vacant. It is that situation in relation to which the restriction is imposed. The existing dwelling can always be demolished. In fact, that is exactly what is proposed in the current case. If the current house is demolished the site will again be vacant. The restrictive covenant (whether modified or not) will continue to apply, and will have to be respected.

32 The ambiguity referred to above is that Mr. Soding says that the quoted phrase could be read as referring to two things rather than one. In other words, it certainly refers to restriction of the view of the bay, but may intend the reference to lessening enjoyment of the property as a separate proposition. The alternative, of course, is that the reduction in an enjoyment of the property is because of the restriction of the view of the bay. In those terms it is one proposition, not two.

33 I consider that the correct interpretation is that there is one proposition namely that enjoyment of the property will be lessened by restriction of the view of the bay. There is no reference to any other problem or detriment, and I think it is reasonable to assume that such other problem would be referred to if it was intended to be included in the objection.

34 In any event, the lessening of enjoyment, if it is intended to cover something other than the view of the bay, is so completely general and unspecific that no-one can know what it is intended to refer to. It follows therefore that the responsible authority, and the Tribunal on review, can make no assessment of such second or other concern. It may or may not be true that some case could arise where it is patently obvious what such further concern would be, although that does not really overcome the need for it to be specified in the written objection. In any event, there is nothing of such an obvious nature in this case, and none was nominated or referred to, when this question was discussed in the course of the hearing.

35 I proceed therefore on the basis that the first paragraph of the objection relates to the question of the view, whilst bearing in mind that the terms of the restrictive covenant do not protect the view and that the occasion for raising such an objection, if it ever arises, has yet to arise.

36 The second paragraph of the objection is interesting. It is not an objection. It appears to be an attempt to negotiate and to indicate that the objectors are merely exercising their right of objection for an ulterior motive. The motive is not because of a genuine objection to the proposed removal or modification of the covenant, but rather the objection is a lever being used to pressure the applicant into relinquishing the legal right that she has acquired by adverse possession to ownership of what was the once strip 5.22 metres wide across the rear of the Campion land. I think therefore that the objection has to be regarded as having been made, wholly or at least partly, for an ulterior motive.

37 The third paragraph of the objection indicates that the Campions would require a restriction limiting the rear dwelling to single storey, although no current restrictive covenant imposes any such restriction.

38 On 24 March 2004 the solicitors for Ms. Kellas wrote to the Campions and to the responsible authority with a proposal. Both letters were "open letters" by which they mean they were not marked "without prejudice'. The proposal was not to seek complete removal of the three relevant restrictive covenants, but rather to modify them in the terms now sought. So far as the rear 15.7 metres of Lot 4 is concerned, that is , the portion opposite Lot 1, and between the extension of the southern side boundary of Lot 1 across Lot 4 and the rear northern boundary of Lot 4 is concerned, the proposal is that there would continue to be a restrictive covenant requiring the land to be used only for residential purposes but that it would varied to allow two dwelling houses, including the usual outbuildings but that, so far as the specified rear portion is concerned, any building must not exceed one storey.

39 So far as the part of Lot 1, now owned by Ms. Kellas, and forming part of the review site is concerned, the proposal was that the modified restrictive covenant would ban the use of the land for other than residential purposes and would provide that no building should be erected other than a single storey building.

40 Both the proposed amended covenants contain concessions to the Campions in as much as they limit the height of building on the land to their rear to one storey where the existing covenants impose no such limitation. It appears obvious that this concession is to protect views from the Campion property (which supports a two storey dwelling) along the lines suggested in the Campion objection.

41 No reply was received by the solicitors for Ms. Kellas to the letter they had addressed to the Campions. In fact, the Campions have taken no further part and taken no further action in relation to this case since lodging their objection. They did not appear, and were not represented, at the hearing.

42 The responsible authority did not reply either, but that is understandable in the circumstances. It probably needed some response from the Campions indicating their attitude to the suggestion before it formulated its own view or went into the question of amending the permit application. Similarly, Ms. Kellas did not seek, at that stage, to amend her permit application to accommodate the suggested compromise in the 24 March 2004 letter, presumably because there was little point in doing so when no response had been received or indication given that the Campions were interested in such a resolution of the matter.

43 Ultimately, the responsible authority considered and determined the application on the ground quoted above as set out in its Notice of Refusal to Grant a Permit dated 14 June 2005. Of course, in doing so, it was considering the application in its original and unamended form which sought simple removal of the various restrictive covenants. That would be, of course, a much wider proposal, giving much wider scope to the owner of the review site, compared with the confined proposal now sought pursuant to the amendment made at the hearing. It should perhaps be remembered that a decision to grant the restricted modifications now sought does not, by any means, imply that the decision of the responsible authority to refuse the much broader proposal for complete removal of all covenants was inappropriate.

44 Section 60(5) PE Act prevents the responsible authority, and on review the Tribunal, from granting a permit for the removal or variation of a restrictive covenant unless it is satisfied in relation to both paragraphs (a) and (b) of that sub-section. Those requirements impose severe limitations on the power to grant such permits. However, although severe, they do not amount to a complete bar, and should not be interpreted in that way. If there was meant to be a complete bar, then the power of the responsible authority, and on appeal the Tribunal, to grant a permit should have been repealed. It has been said that the "bar" set by these provisions is "very high" but that does not mean that it is insurmountably high. Some decisions of the Tribunal, like mine in Wilde v. Moonee Ponds CC and McKay (1997) 18 AATR 145 illustrates this.

45 References were made by Mr. Soding to the second reading speech of the then Minister when sub-section 60(5) was introduced. The Minister made reference to the power to grant this sort of permit being retained in relation to "dead wood" restrictive covenants. This sometimes leads people into a discussion as to what is meant by a "dead wood" restrictive covenants. However, it is the words of the Act, and in particular section s.60(5), that have to be interpreted, not rhetorical expressions employed by the Minister in his speech. I recall referring to the degree to which the second reading speech and the references to "dead wood" were helpful in the reasons of some previous case. For the present, I recall that reference to extraneous documents, including parliamentary documents and second reading speeches, may be referred to in the interests of determining the purpose of legislation where the wording of the statute is ambiguous or uncertain and where the purpose is sought with a view to interpreting the statutory provision in accordance with its purpose. Such references are not open where the wording of the statute is clear, and are not useful if they do not clarify the purpose of the particular provisions in question.

46 Mr. Soding referred to there being quite a number of cases in relation to s.60(5). That is true. My decision in Wilde referred to above is one of them. He referred me to a decision of Judge Strong sitting as a Vice President of the Tribunal with Mr. SR. Cimino in the case of McFarlane v. Greater Dandenong CC and ors. [2002] VCAT 469. He referred particularly to paragraph 21 and subsequent paragraphs of the reasons given in that case (including reference to Carabott v. Hume CC and anor. (1997) 22 AATR 261).

47 It should be observed that the remarks referred to are obiter dicta (that is to say observations made by the way rather than conclusions essential to the decision made in the case). Such observations frequently provide helpful guidance but they are not the essential part of a decision that would be binding authority according to the doctrine of precedent that applies in court. I am not strictly bound by what is said in McFarlane's case because each case, insofar as it depends on facts, must be determined in accordance with its own facts. Furthermore, the Tribunal is not bound by its own decisions, however helpful the guidance of the previous decisions might frequently be.

48 The observations in McFarlane's case certainly bring out the severity of the partial bars imposed by s.60(5) although, as I have said, they are not a complete bar. I do not disagree with what is said in McFarlane's case, or at least the parts that were read out by Mr.Soding. I make two observations.

49 The restriction imposed by s.60(5)(a), although very broad in its reference to "detriment of any kind" is nevertheless qualified in as much as an assessment has to be made as to whether or not the owner of land benefiting by the covenant is "unlikely to suffer any detriment of any kind". If a detriment, widely expressed to include a detriment of any kind, is nevertheless considered to be unlikely to be suffered, then s.60(5)(a) does not bar the granting of a permit.

50 The other qualification I would make is that I do not think that the wording of paragraph (a) for all its width in relation to "any detriment of any kind" excludes the notion of "de minimis". That expression is the contraction used in relation to the Latin phrase "de minimis non curat lex" which means that the law does not concern itself with trifles. In other words, something that might be argued to be a detriment of some kind should be disregarded if it is genuinely trifling in all the circumstances. Perhaps that is just another way of saying unlikely to suffer detriment.

51 There is no bar on the grant of a permit under s.60(5) if it is "unlikely" that the owner of land benefiting from the covenant will suffer any detriment of any kind as a result of the removal or variation of the covenant. In this case I think it is unlikely that the owners of Lot 1 will suffer detriment by the proposed variation of the covenant. The only detriment they have pointed to is interruption to their view. I recognise that interruption to a view could well come within the concept of "any detriment" of any kind but does this particular covenant (or any of them) provide any protection against that particular detriment? For reasons that I have already given, I consider that the answer to this question must be "no". The existing covenant, when its terms are correctly analysed, does not provide any protection against two or three or more storeys being constructed on any part of the land, including the rear section that the Campions are particularly concerned about. They will be entitled to seek to protect their view, and to object, if at some future stage an application is made for a permit to allow two dwellings on the land of such proportions as would unreasonably affect their land having regard to planning considerations relevant in relation to such a case. However, the time for that is when such an application is made. In the meantime, the current proposed modification in fact enhances the protection the Campions would derive from the covenant.

52 There is another bar in s.60(5)(b). I have previously held, and remain satisfied, that this is cumulative on paragraph (a). In other words, even if the responsible authority or the Tribunal is satisfied in relation to (a) it must, in addition, be satisfied in relation to paragraph (b).

53 That provision provides that the responsible authority must be satisfied, if the owner of land benefiting by the covenant has objected to the grant of a permit, that the objection is frivolous or not made in good faith.

54 It is seldom possible to demonstrate vexatiousness in the necessary sense, or lack of good faith, although Wilde's case is an example where such an objection did not prevent the grant of a permit. Very frequently the responsible authority, or the Tribunal, is confronted with an objection, but with no basis for supposing it to be vexatious or not made in good faith.

55 In this case I have found the objection, made in relation to the question of view, to be not relevant to the restrictive covenant imposed. That may or may not be sufficient in itself but, in my opinion, the inclusion of the second paragraph in the objection portrays the objection as not being made in good faith. I think it demonstrates an ulterior motive. An ulterior motive does not necessarily have to be an illegal or wicked motive. An objection can nevertheless said to be not made in good faith if it is made for a purpose other than the purpose for which the right of objection is granted. An objection is not made in good faith, it is made for the purpose of pressuring or forcing somebody into relinquishing legal ownership of part of their land, rather than because of an objection to the merits of the alteration being sought to the restrictive covenant. I therefore conclude that neither paragraph (a) nor (b) of s.60(5) bars the grant of a permit in this case.

56 I have already observed that the Campions have taken no steps in relation to this case since lodging their original objection. They did not respond to the letter of 24 March 2004. There was no legal obligation on them to reply, although their failure to do so appears to indicate that they are "running dead" or had lost interest in the matter.

57 Evidence was produced to show that they were served with a copy of the application for review, together with accompanying documents advising them how to proceed if they wish to take part in the proceedings. They have not lodged any statement of grounds so that they have not become a party to this proceeding and, of course, did not appear or present any evidence or submissions.

58 Mr. Soding protested, from time to time, that he was not appearing on their behalf or presenting their case. Nevertheless, I think it is fair to say that he was diligent to ensure that anything that might have been argued on behalf of the Campions was not overlooked.

59 I have concluded that s.60(5) does not bar the grant of a permit in this case. I note that concerns about views, and possibly other amenity questions may arise for consideration and determination at a later stage. I note that the proposed modifications in fact enhance protection of the concerns raised by the only owners of land benefiting by the covenants who lodged an objection. I presume that the owners of Lot 2 and Lot 5, would have lodged objections, and pursued those objections, if they thought they had legitimate concerns that they needed to raise. I see no other reason for refusing to grant the permit allowing the modifications being sought. I propose therefore to grant the application for review and a permit accordingly.

_________________

RUSSELL BYARD

SENIOR MEMBER