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At the hearing the parties who had the benefit of the covenant, namely the applicant, the Responsible Authority and the objectors (owners of benefited land: Norman Rosenbaum and others), reached agreement on the precise wording of the amendment to the covenant. The hearing was adjourned to an administrative mention to finalise the agreed wording (Reasons [2]--[3]). Although a third-party owner, Dr Alexander J Fixler, was mentioned during the proceedings, the Tribunal noted that his consent was not required because his land did not have the benefit of the covenant (Reasons [4]).

Minutes of consent orders, signed on behalf of all the relevant parties, were submitted to the Tribunal. On that basis the Tribunal made the consent orders sought: amending the permit application to state it sought variation of the restrictive covenant in Transfer of Land No. 1564018 (Order A), granting the permit to amend the covenant to the precisely agreed wording (Order B), and directing the Responsible Authority pursuant to s 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue the permit in accordance with the Order (Order C). The permit was granted subject to conditions: a plan under the Subdivision Act showing the restrictive covenant and its variation for certification, and a two year expiry if the covenant was not varied within that time (Orders B.1 and B.2).

Why the court decided this way

The Tribunal's decision is grounded in consent. The reasons record that agreement had been reached between the parties present at the hearing and that the adjournment was sought specifically to finalise the agreed wording of the amendment (Reasons [2]--[3]). The decisive factual point is that those parties who held the benefit of the covenant had signed the minutes of consent orders and submitted them to the Tribunal (Reasons [5]).

The Tribunal therefore exercised its power to make the orders sought by consent. It also made a discrete legal point about who must consent: the Tribunal observed that although mention was made of a nearby owner, Dr Fixler, his consent was not required because his land did not have the benefit of the covenant (Reasons [4]). Accordingly the Tribunal was content to proceed without his consent.

Thus, the outcome turned on two interlocking elements: (1) the presence of signed minutes of consent orders from the relevant beneficiary parties, and (2) the legal fact that only owners of land that have the benefit of a covenant are necessary consenting parties for the purposes of effecting the variation that the parties sought to achieve. The Tribunal's orders reflect the agreed amendment and appropriate administrative conditions for effecting that variation.

Before and after state of the law

Before this decision the statutory framework governing variation and removal of restrictive covenants in the Victorian planning context was contained in the Planning and Environment Act 1987. The Tribunal's jurisdiction to review a refusal is invoked under s 77, and the mechanism to permit removal or variation of restrictive covenants by the Responsible Authority is given effect through s 85 (NATURE OF PROCEEDING; Orders C).

This VCAT decision does not purport to make new law; rather it applies the well-established practice that a tribunal may make consent orders where the relevant parties agree. The decision endorses the position that the consent of a person who owns nearby land but who does not hold the benefit of the covenant is not necessary for a valid variation, that is a matter of the identity of beneficiaries rather than mere geographic proximity (Reasons [4]).

After the decision the practical legal position remains that, in appropriate cases, parties who hold the benefit of a restrictive covenant can achieve its variation through consent and by securing a Tribunal order that directs the Responsible Authority to issue a permit under the Act. The decision illustrates the Tribunal's readiness to give effect to such consensual arrangements where the requisite parties have agreed and documented the agreement.

Key passages with plain-English translation

1. Reasons [1]:

   • Text: "I heard this case on 31 March 2009 and made an interim determination dated 3 April 2009. The circumstances of the case are set out in the remarks in that document."
   • Plain-English: The Tribunal had previously heard the matter and made an interim decision; background facts and initial reasoning are in those earlier remarks.

2. Reasons [2]:

   • Text: "At that stage, the case was adjourned to an administrative mention on 29 April 2009. This was at the request of the parties ... because agreement had been reached between the parties ... "
   • Plain-English: The hearing was put on hold so the parties could finalise an agreement they had reached.

3. Reasons [3]:

   • Text: "The adjournment was to finalise the wording of an amendment to the relevant restrictive covenant to be agreed between the parties, that is to say, the applicant, the responsible authority and the objectors owning land having the benefit of the covenant."
   • Plain-English: The agreement to be finalised was the exact text of the covenant amendment, and the agreeing parties were the applicant, council, and the beneficiaries of the covenant.

4. Reasons [4]:

   • Text: "Mention was made of Dr Alexander J Fixler. However, for reasons noted in my previous remarks, his consent is not required. Although he owns nearby land, his land does not have the benefit of the covenant."
   • Plain-English: A nearby landowner was discussed, but he does not benefit under this covenant, so his consent was not needed.

5. Reasons [5]:

   • Text: "Copies of minutes of consent orders, signed on behalf of all the relevant parties, have now been submitted to the tribunal. In the circumstances I will make the orders sought by consent."
   • Plain-English: Because the relevant parties signed and filed the consent documentation, the Tribunal accepted the settlement and issued the orders.

6. Orders B (covenant text) (paragraph 0 in the key quotations):

   • Text: the full agreed covenant wording as inserted into the order.
   • Plain-English: The Tribunal published the exact covenant wording that will appear on title after variation; practitioners should use the precise wording when effecting the variation.

What fact patterns trigger this precedent

This decision is most directly instructive where:

• An owner seeks variation or removal of a registered restrictive covenant as part of a permit application under the Planning and Environment Act 1987, and
• The Responsible Authority initially refuses the permit, prompting an applicant to seek Tribunal review under s 77, and
• The parties who hold the benefit of the covenant (the objectors/beneficiaries), the applicant, and the Responsible Authority reach an agreement on the precise amended wording, and
• That agreement is evidenced by signed minutes of consent orders and lodged with the Tribunal.

In such a fact pattern the Tribunal may be expected to make consent orders varying the covenant and to direct the Responsible Authority to issue the permit under s 85, subject to appropriate conditions (see Orders A--C; Reasons [2]--[5]).

A fact pattern where a nearby landowner is not a beneficiary of the covenant but expresses concern is treated as immaterial to the consent process insofar as his or her consent is not required (Reasons [4]).

How later courts have treated it

This decision is procedural and consent-based. The judgment itself contains no discussion of later judicial treatment, and it does not cite subsequent authorities. The decision functions as an administrative example of the Tribunal giving effect to a consensual settlement about a covenant variation and directing issuance of a permit under s 85. Practitioners should therefore treat the decision as an authoritative instance of VCAT's practice in consenting to covenant variations, rather than as a binding statement of new principle.

If a practitioner needs to rely on case law about who constitutes a beneficiary or about contested covenant variations, they should supplement this decision with other authorities that address those specific legal questions in fuller doctrinal detail. This particular decision's primary value is demonstrative of procedure: obtain the agreement of the beneficiaries, record it in signed minutes of consent orders, and the Tribunal can be expected to make the agreed orders and direct the Responsible Authority to issue the permit.

Still-open questions

The decision leaves several practical and doctrinal questions open, because it is narrowly focused on consent:

• The decision does not analyse in depth the criteria the Responsible Authority or Tribunal should apply when beneficiaries object and no agreement is reached. The ground of refusal cited s 60(5)(a) and (b), but the Tribunal's reasons do not set out a test for determining detriment or vexatious objections; those issues remain to be addressed in contested hearings where consent is not achieved.
• There is no detailed examination of the circumstances in which a nearby owner who is not a legal beneficiary might nevertheless have standing or be relevant to a tribunal's broader discretionary considerations. This decision treats non-benefit owners as irrelevant for the consent requirement, but it does not explore whether their interests can be considered in other ways such as submissions to the Responsible Authority before a permit decision.
• The judgment does not address whether and when the Tribunal should scrutinise the adequacy of the agreed covenant wording in light of planning scheme objectives or public interest considerations, beyond accepting the parties' consent. In contested matters these issues will arise.
• The decision does not discuss procedural safeguards or the formality of documenting the variation (beyond the requirement for a Subdivision Act plan condition), so practitioners should ensure all statutory and registration steps are strictly followed to avoid future title disputes.

In short, Kestenberg v Glen Eira CC [2009] VCAT 1102 is instructive for consensual covenant variations: secure the agreement of the beneficiaries, record it in signed minutes of consent orders, and the Tribunal is likely to make the orders and direct permit issuance under s 85. For contested cases, or where policy or broader public interest issues arise, further authoritative decisions addressing those substantive points will be required.