Kotefski v Boroondara CC [2006] VCAT 1835

1 The application for review is disallowed.

2 No permit is to issue.

Mr D O'Brien of Counsel instructed by Slater & Gordon on behalf of M & F Evans, p Gordon & K O'Toole, A Blyth & M Winstanley

1

Mr Kotefski the owner of 54 Broadway, Camberwell is seeking a review of the decision of Boroondara City Council (Responsible Authority) to refuse a planning permit to realign the boundary of the two lots that make up the subject land (subdivision), remove a registered restrictive covenant which permits only one dwelling to be erected on the land and allow for the construction of a fence along the realigned boundary between the two lots.

2

The Responsible Authority refused the application on the grounds that the subdivision design and layout would be incompatible with and detrimental to the visual amenity of the heritage character of the area. The subdivision and fencing would result in a reduction of the garden of the existing heritage dwelling detracting from its heritage significance and altering the appearance of that dwelling in the streetscape. The subdivision would result in future development on lot 2 which could detract from the heritage characteristics of the neighbourhood and could affect the appearance of the heritage dwelling.

3

The issues for determination are:

•

Whether the restrictive covenant attached to the land should be removed or varied?

o

Is there any land benefiting from the covenant?

o

Are there any beneficiaries that will be likely to suffer any detriment (including perceived detriment) if the covenant is removed or varied?

o

Is the Council's objection vexatious and not made in good faith?

•

Whether the boundary realignment and fencing will result in an adverse impact on the heritage significance of the existing dwelling and the heritage character of the area?

•

Whether any resultant future development will have an adverse affect on the appearance of the heritage dwelling or the heritage character of the area?

Whether the restrictive covenant attached to the land should be removed?

4

54 Broadway is a wedged shaped piece of land contained in two titles. The eastern title[1] covers a triangular area with a frontage of 27.15m and narrows from 14.20m to a point with an area of 222m². The western title[2] has a frontage of 60.96m; its depth varies between 37.31m and 14.20m with an area of 1610m². On the western title is an existing heritage dwelling described as a Queen Anne attic-villa.

5

A restrictive covenant attaches only to the western title of the land. The covenant is contained in Instrument of Transfer No 646304 dated 13 March 1911 between the Mayor Councillors and Burgesses of the Town of Camberwell (the Council) as registered proprietors and John Thomas Creaser. The land to be transferred is described in the transfer as the area coloured red on the plan in the transfer and being part of the land particularly described in Certificate of Title Volume 3260 Folio 651873.

6

The relevant parts of the covenant provide that John Thomas Creaser covenants with the Council and their transferees to not erect more than one dwelling house or tenement on the land coloured red without the previous consent or waiver in writing of the Council. He further covenants that the dwelling or tenement is to be of brick or stone at a cost of not less than seven hundred and fifty pounds with a front entrance to Broadway or Stanhope Grove and with its back not to front either of those streets. The covenant is to be set out as an encumbrance at the foot of the Certificate of Title to be issued in respect of the said land and shall run with the land.

7

At the time this portion of land was transferred it formed part of a larger piece of land owned by the Council that extended west to Cookson Street. This piece of land was bound by Broadway to the north, the railway to the south with a right of carriage way over Cookson Street to the west and was contained in Certificate of Title Volume 3260 Folio 651873 (parent title).

8

Immediately to the west of the subject land is 52 Broadway owned by Ms Blyth and Mr Winstanley. This land also formed part of the original piece of land owned by the Council. 52 Broadway was transferred out of the parent title in similar fashion to the subject land on 21 October 1912. A registered covenant in almost identical terms attaches to this piece of land.

9

Having sold both pieces of land the Council retained the remainder of the land, the western portion forming what is now known as the Read Gardens, with the eastern triangular portion also remaining as gardens until it was sold by the Council in 1965 to Mr Kotefski. Several small slithers of the land along the southern side were transferred at various times to the Railways from either the Council or the owners of 52 and 54 Broadway.

10

Both the owners of 52 Broadway and the Council submit they are beneficiaries of the covenant and as such will suffer detriment if the covenant is varied or removed. In the Council's case this is a somewhat belated objection. Mr Kotefski at the time of the permit application submitted a letter from his solicitors expressing an opinion that the covenant was personal in nature and that there were no beneficiaries. The Council accepted this view following internal advice. As a result of further advice since the hearing the Council now contends it is also a beneficiary to the covenant.

11

Mr Kotefski maintains the covenant is personal in nature between the Council and the owner of 54 Broadway and there are no beneficiaries. In support of this position it was submitted the covenant does not expressly identify the land intended to be benefited and no building scheme exists. As there are no beneficiaries the Council, as well as the owners of 52 Broadway, have no standing in relation to the removal or variation of the covenant.

12

To remove or vary a restrictive covenant the Tribunal must be satisfied that an owner benefiting from the restriction, not a contracting party, will be unlikely to suffer detriment of any kind including perceived detriment as a result of the variation or removal[3]. It was also submitted the belated objection by the Council should be construed as being vexatious or not made in good faith[4].

13

In submitting there is no land identified in the covenant that benefits Mr Kotefski relies upon the reference to the early decision of Dean J in Re Dennerstein[5] that the words of the covenant must be sufficient, expressly or impliedly to identify the land to be benefited. There is no specific reference to or words used in the covenant that specifically refer to the land to be benefited. Whilst there is a specific reference to the Council as benefiting owner, the reference to benefiting land must be distinct from a reference to the benefiting owner. It was submitted the reference in the covenant to the parent title is only to identify that part of the land to be transferred[6] and does not alert to land that remains untransferred. The use of the words 'executors, administrators and transferees' do not of themselves assist nor does wording that the covenant will remain as an encumbrance on the land and run with the land.

14

To decide whether the benefit of a covenant is annexed to some land the common intention of the original parties to the covenant must be ascertained. This can only be done by considering the words of the covenant giving them their ordinary and natural meaning. If it can be concluded there is an intention other surrounding circumstances known to the parties at the time may properly be taken into account.[7]

15

The land transferred is referred to as being part of the parent title specifically referred to in the transfer. The land transferred is coloured red on the plan in the transfer with part of the land contained in the parent title also shown. The transfer indicates that the Council is 'registered as the proprietors of an estate in fee simple in the land herein after described subject to the encumbrances notified hereunder'. The land described includes the land to be transferred as well as the reference to the parent title. This indicates that the land transferred is part of a larger piece of land that is totally owned by the Council. The covenant is also made between Thomas John Creaser 'for himself his heirs executors administrators and transferees' with the Council 'and their transferees'. The specific reference to the Council and their transferees indicates the Council contemplates transferring other parts of this land that is totally owned by the Council at some time in the future.

16

On the wording contained in the transfer I conclude that there is a clear implication that the Council owns the land remaining in the parent title and that this land is to benefit from the covenant contained in the transfer.

17

An inspection of the parent title confirms that at the time of the transfer of 54 Broadway the Council owned the whole of the land in the parent title. 54 Broadway was the first piece of land transferred out of the parent title.

18

In the Council minutes for the 4th July, 1st August and 4th November 1910, reference was made to the eastern part of the land (contained in the parent title) being offered for sale in one block by auction and that it be conditional upon 'no house or tenement be erected on the land unless built of brick or stone, and that such building cost not more than 750'. As the land was not sold at auction as the reserve price was not reached, the land was to be offered for private sale, the Mayor and two councillors deciding whether the land was to be offered as one block or subdivided into two blocks. It is evident from the sales that occurred that the land was sold in two blocks the first block (54 Broadway) being sold on 13 March 1911 and the second block (52 Broadway) being sold on 21 October 1912.

19

Although it had been the intention of the Council to transfer both parts as one at auction when sold the land was not as one but was divided into two. Both pieces of land at the time they were transferred out of the parent title contained an identical covenant whereby the transferor covenanted with the Council and their transferees. 52 Broadway when part of the parent title owned by the Council benefited from the covenant on 54 Broadway. Upon the transfer of 52 Broadway from the parent title as a transferee of the Council it continues to benefit from the covenant on 54 Broadway as does the land remaining in the parent title. The slithers of land transferred out to the Railways following the transfers of 54 and 52 Broadway as well as the small portion of land sold in 1965 to Mr Kotefski also benefit from the covenants contained on both 54 and 52 Broadway.

20

The use of the words in the covenant that 'the covenant shall run with the land' would appear to be meaningless if there was no land to benefit from the burden of the covenant. This would be particularly so if not only the land was to be encumbered but that reference is made to the Council and its transferees. The Council minutes indicate an intention to encumber the whole part to be sold and when the land was sold in two separate blocks each with reference to the Council 'and their transferees' it can be concluded that there was an intention to benefit the land remaining.

21

All of the land untransferred out of the parent title at the time of the transfer of 54 Broadway benefits from the covenant and this includes the land remaining in the ownership of the Council and since transferred being 52 Broadway and the slithers of land transferred to the Railways. Although there is no restriction placed on the title to the smaller eastern title that forms part of 54 Broadway this small portion of land benefits not only from the restriction on 54 Broadway but also from the restriction on 52 Broadway whilst 54 Broadway does not benefit from the restriction on 52 Broadway this piece of land having been transferred out of the parent title prior to the transfer of 52 Broadway.

22

The consent or waiver retained by the Council in the covenant is not seen as determinative of an intention to make the covenant personal in nature. It is not unusual for the owner of land particularly in the case of a plan of subdivision to wish to retain some ability to change a restriction imposed on parts of the land. This control is often retained by the transferor even when they no longer have an interest in any part of the land.

23

That there is no like covenant attached to the small eastern title is not determinative of there not being any benefiting land. Given the size of this piece of land it was suggested that it would be unlikely a dwelling let alone more than one could be built on the land, although there are many lots of less than 220m² that do contain dwellings, just not in this area.

24

Unlike the covenant in Hellier McFarland Pty Ltd v City of Melbourne[8] the remaining land in the parent title was retained by the Council and in contrast to Basile v Moreland CC & Ors[9] there is specific use of the words 'and transferees' and this was the first transfer out of the parent title. There is also clear extrinsic evidence indicating both transfers out of the parent title were in almost identical form.

25

Is there a scheme of development (building scheme)? If there is found to be a building scheme then it is not necessary to establish the covenant was annexed to any particular land. Whilst the owners of 52 Broadway contended there was a scheme of development and as a result the whole of the land benefited the Council does not agree.

26

The principles of a scheme of development were enunciated in Elliston v Reacher[10] and more recently referred to by the Victorian Supreme Court in Fitt & Anor v Luxury Developments Pty Ltd[11]. Whilst both the owners of 54 and 52 Broadway derive title from a common vendor namely the Council the two parts of the land to be sold were not specifically set out in lots in a plan of subdivision, although they are of a similar size. The parts were sold separately and although the Council minutes indicate an intention to restrict what amounted to both pieces of land it is not evident that other parts of the land since transferred out of the title contain any restrictions or covenants. Nor is there any form of notification or indication on the titles that the covenant arose under a scheme of development[12].

27

The land benefiting from the covenant burdening 54 Broadway includes 52 Broadway, the land remaining in the ownership of the Council and known as Read Gardens, the slithers of land owned by the Railways and the eastern title forming part of the subject land. There is no indication that the covenant arose under a scheme of development.

Are there any beneficiaries that will be likely to suffer any detriment (including perceived detriment) if the covenant is removed or varied?

28

Both the Council and owners of 52 Broadway submit they will be likely to suffer detriment including perceived detriment if the covenant is varied or removed. Although the Railways are not before me to indicate whether in their view they will suffer any detriment I am required to consider all beneficiaries.

29

The covenant at present burdens only the western title of the subject land. As a result of the proposed subdivision part of the western title is to be included into the eastern title. The newly created lot would be burdened by the covenant and an additional dwelling could not be built on this land. Both the Council and owners of 52 Broadway submit to allow a second dwelling to be built in such close proximity to the existing heritage dwelling, on a lot that is much smaller than the surrounding lots which only contain single dwellings would be detrimental. The detriment would be the resultant significant change to the heritage character and dwellings in the area.

30

Ms Blyth gave evidence that one of the considerations in purchasing her property at 52 Broadway twelve years ago was the covenant which in her view allowed for the protection of the large lot and single dwelling on the adjoining property that was indicative of the uniform large lots containing large single dwellings in the street. She expressed concern that the creation of a smaller lot containing a modern dwelling would detract from the Edwardian and Queen Anne character of the area and could have an impact upon the value of her property. She referred to her objection in 1999 to the subdivision of the tennis court area from the large property opposite at 69 Broadway as being in her view inappropriate for the area where the lots are large. Since the purchase of 69 Broadway by Mr Gordon and Ms O'Toole this approved subdivision has not been acted upon.

31

The Council's view is that as the owner of Read Gardens it will suffer detriment due to the detraction from the significance of the character of the heritage place and the surrounding neighbourhood character. It referred to its Neighbourhood Character Statement 104 which describes the area as having predominately large size lots, notable for quality Victorian and Edwardian period houses, its gardens and quality streetscapes. The area is described as being predominantly a single dwelling residential area with multi-dwelling development confined to arterial roads. The area is a recommended urban conservation zone (Camberwell Conservation Study 1991) assessed mainly for its high quality streetscapes and historic buildings.

32

'It is not for the Tribunal to determine whether it is satisfied on the balance of probabilities that any covenant beneficiary "will be unlikely to suffer any detriment of any kind if the variation is permitted". In other words it is not a question of whether the Tribunal is satisfied there will be detriment: the Tribunal must be affirmatively satisfied that there will be none'[13].

33

Certainly from Ms Blyth's perspective there is a perception that the variation of the covenant that would permit a single dwelling to be built on the newly created lot, albeit of 750m² would be detrimental to what she considers is the character and amenity of the area with large period homes set in large gardens which may result in a reduction in the value of her property.

34

Any perceived detriment however small as a consequence of a variation can lead to the barring of the variation[14]. I cannot be satisfied that there will be no detriment of any kind if the covenant is varied.

Is the Council's objection vexatious and not made in good faith?

35

Mr Kotefski contended that as the Council had not originally objected to the removal or variation of the covenant that its belated objection amounts to being vexatious and not made in good faith.

36

I am unable to conclude that following further investigation and additional advice the Council's objection is not made in good faith. Even if the Council did not wish to pursue an objection, as I have concluded it is a beneficiary to the covenant I am required to consider whether any beneficiary will be unlikely to suffer any detriment of any kind and in this instance I am unable to reach that conclusion.

Whether the boundary realignment and fencing will result in an adverse impact on the heritage significance of the existing dwelling and the heritage character of the area?

37

Whilst I have concluded that the beneficiaries of the covenant are likely to suffer detriment if the covenant is varied or removed and in such circumstances this should not be permitted there are other avenues which Mr Kotefski could follow to have the covenant varied or removed, I will therefore address the other parts of the application which include subdivision and the construction of a fence.

38

The subject land as is the surrounding land is located within the Residential 1 Zone and affected by Heritage Overlay HO159 under the Boroondara Planning Scheme. A permit is required under the provisions of the zone and overlay to subdivide land. It is proposed to realign the boundary between the two parcels of land that make up the subject land. The larger lot area is to be decreased from 1610m² to 1111m² and the smaller lot area is to be increased from 222m² to 721m². The enlargement of the smaller lot is to enable a dwelling to be constructed and although the construction of a dwelling is not the subject of this application it is proposed to incorporate on the plan of subdivision a building envelope of 263m² setback 3m from the common boundary and 3 to 8m from Broadway. A restriction is to burden this lot allowing the construction of a single storey building within the building envelope.

39

A permit is also required to construct a fence under the provisions of the heritage overlay. A 1.65m paling fence is proposed to be constructed along the newly created boundary between the two lots.

40

The existing heritage dwelling is located close to the western boundary on the larger lot. It has entrances off Broadway as well as an entrance on its eastern elevation. The view when looking east from the dwelling is over an expanse of garden which at present is relatively bare due to the removal of vegetation, apart from a recently planted row of cypress trees along the northern boundary. The proposed realignment of the boundary will result in the existing heritage dwelling being setback 12m from the new common boundary between the two lots.

41

It was the view of the Responsible Authority that the subdivision would detract from the significance of the existing heritage dwelling and the surrounding heritage area as it would result in the removal of the garden setting of the existing heritage dwelling and result in a loss of appreciation of this dwelling in the streetscape. Mr Kotefski submitted the garden setting of the dwelling was not of itself significant rather it was the Queen Anne attic style dwelling which was the notable feature of the site and in the context of the area views from the street of this dwelling would be maintained.

42

The Queen Anne attic style dwelling is graded B and referred to under Precinct 26.4, Russell Estate - Broadway and Sefton Place in the Camberwell Conservation Study 1991 now incorporated into Heritage Overlay 159 known as the Prospect Hill Road Precinct. The dwelling is described in detail and is noted as 'architecturally, a skilful and intact example of the Queen Anne villa style which is enhanced by its siting and placement in an important Queen Anne precinct'. Other examples of the Queen Anne style are found in close proximity at 58, 62, 66, 68, 71, and 73 and in particular the larger dwelling opposite at 69 Broadway which due in part to its angled location on its corner site is dominant in the street.

43

There is no question that this part of the larger Prospect Hill Road Precinct referred to as Precinct 26.4 in the Study is a valuable area in heritage terms. These dwellings are excellent and reasonably intact examples of the development of this part of Camberwell. They are all surrounded by relatively large and well established gardens that contribute to the overall view of Camberwell as a green and leafy suburb providing a high quality residential environment[15].

44

The relationship of the garden setting and how the existing heritage dwelling is to be viewed in this context was heavily relied upon by the Responsible Authority and resident objectors although there is no control over landscaping in this area. The statement of significance of the existing heritage dwelling focuses mainly on its architectural features and it is noted that when the reference in the citation was made to the available grounds being maximized in the design allowing for distant views and the survival today of some mature shrubbery the vegetation in the garden significantly blocked views of the dwelling from the street. Whilst the garden has been virtually cleared opening up the views of the heritage dwelling from the street the recently planted row of cypress along the Broadway frontage or some other form of future landscaping could result in the visibility of the dwelling being again significantly reduced.

45

Mr Butler emphasised the three dimensional form of the Queen Anne villas and was of the view that the dwelling at 54 was sited to enable it to be viewed in the round. The views towards 54 as one negotiates the curve of Broadway from north to west does at present allow for an appreciation of the three dimensional aspect of the dwelling. This is due in part to the curve of the railway line to the south, to the triangular shape of the land also due to the railway line and to the removal of a significant amount of vegetation from the site particularly from what was the smaller lot once a public garden.

46

A number of the dwellings in the area can be viewed from different aspects depending on the way they have been sited on the lot. The corner location of the dwelling at 69 Broadway allows views of this dwelling from different angles; similarly the location of the existing dwelling close to the northern boundary enables views from several angles in contrast to the dwelling at 67 Broadway which is well screened by vegetation.

47

The presentation of the front of the majority of the dwellings to the street still allows for an appreciation of the three dimensional form of the Queen Anne style of architecture. Whilst Mr Butler sought to emphasise the significance of the garden settings of these dwellings, and in particular the garden setting of the dwelling at 54, Ms Riddett was of the view that whilst the garden made some contribution it was not of heritage significance, if it was it would have been referred to in more detail rather than only a reference to distant views and mature shrubbery in the citation.

48

Apart from the general reference within the neighbourhood character description[16] to the large and exotic styled private gardens with dense vegetation and large canopy trees I am unable to find in any of the citations of heritage significance an emphasis on the heritage significance of the garden settings of any of the Queen Anne Style villas, or that these buildings must only be viewed in their three dimensional form, although this is an acknowledged architectural feature of this style of dwelling.

49

New lots should generally respect the existing subdivision pattern. The land is already in two lots so it could be said that this is part of the subdivision pattern of the area, although the smaller lot, as is the extremely large lot opposite, are anomalies in the area. What the smaller lot size is indicative of is the shape of this piece of land. In this case as the lot already exists the enlarging of the lot to allow for a dwelling to be developed on it in a residential area should not be considered unusual or inconsistent with the area. Mr Butler did not reject the subdivision but rather focused more on the need to know what type of development was proposed before subdivision was allowed. In this respect he did not merely focus on the subdivision but rather on the type of development and whether it would have an impact on the heritage significance of either the existing dwelling or the area.

50

Ms Riddett did not consider there was any heritage impediment to the subdivision. She was of the view the local policies did not give any guidance and referred to the wider context of the heritage area which includes smaller lot sizes, although not in the immediate vicinity of the subject site.

51

From a reading of the references to the heritage significance of the place and the neighbourhood character statement for the area one can only conclude that the area is dominated by large dwellings which are surrounded by large areas of garden. The proposed size of the two lots at 1111m² and 721m² cannot in anyway be considered small nor do I consider that they should be contrasted to the larger size of 69 Broadway. There is a 677m² lot around the corner in Stanhope Grove and the recently approved subdivision of 54A Broadway[17] allows for two lots of 528m² and 501m².

52

Mr Patrick gave evidence of how a more appropriate landscaping treatment could enhance the existing heritage dwelling and provide the desired view lines to this dwelling from the street; this included the removal of the recently planted cypress hedge. A sketch landscape plan was also provided that envisaged potential landscaping for the smaller lot and whilst it is always difficult to envisage landscaping when there is no proposed building it is evident from the sketch plan that planting on the smaller lot could be achieved that would sit comfortably with the garden settings of the surrounding dwellings.

53

The land is an anomaly in terms of its shape and whilst it already is made up of two lots I consider this should be given weight in any consideration in any proposed realignment of a boundary. It is unlikely in this location that a permit for a dwelling would be permitted on the existing lot of 222m² but it is not unheard of that a dwelling could be constructed on such a lot size. The area is zoned Residential 1 and amongst the purposes of the residential zone is to provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households and to encourage residential development that respects the neighbourhood character. I do not see the proposed subdivision as being inappropriate.

54

To define the boundary between the two new lots it is proposed to construct a 1.65m paling fence. In a residential setting a side boundary fence is not at all unusual. I am not sure that it is necessary to construct the fence at the height proposed for the full length of the boundary and would see it as more appropriate to the site and in the context of the area that a lower form of fence of 1m in height be used for the first 8m or to the edge of the building envelope from the front boundary. This in my view would allow for continued views from the street to the eastern entry of the existing heritage dwelling.

55

Having considered the evidence of Mr Butler, Ms Riddett and Mr Patrick I am unable to conclude that the subdivision itself or the construction of a fence between the two newly created lots will result in any adverse impact on the heritage significance of the area or the existing heritage dwelling. Whilst one newly created lot will be slightly smaller than the majority of lots in the area it is of sufficient size to allow for construction of a dwelling within a garden setting a feature of the area.

56

Given however that I have concluded the covenant which only allows one dwelling to be constructed on the land should not be varied and given the subdivision is only to achieve an area that would permit the construction of a dwelling, I do not consider the subdivision or the construction of a fence should be approved at this time.

Whether any resultant future development will have an adverse affect on the appearance of the heritage dwelling or the heritage character of the area?

57

To the west of the subject land is 52 Broadway which contains a two storey D graded dwelling constructed in 1920. To the south is the Lilydale/Belgrave railway line. To the north is 56 Broadway containing a dwelling owned by Janne-Marie and Robert Symons, 67 Broadway owned by Mark and Fiona Evans containing a D graded dwelling constructed in 1915 and 69 Broadway owned by Peter Gordon and Kerri O'Toole containing a B graded dwelling constructed in 1900-01. The streetscape is graded level 2 and represents particular growth periods of architecturally important groupings.

58

The newly created 721m² lot sits on the curve of Broadway opposite the corner on which 69 Broadway is angled to face. In this context any new dwelling will be highly visible, not only because of its more contemporary design in this heritage precinct of Queen Anne style villas but also because of its location in the street and its relationship with the existing heritage dwelling on 54 Broadway as well as its relationship with 69 Broadway.

59

The 263m² building envelope shows a 3 to 8m setback to Broadway and a 3m setback to the common boundary resulting in a 12m setback from this boundary to the existing heritage dwelling. The area of the existing 222m² lot is only slightly encroached upon by the building envelope leaving the majority of this small triangular area open and available for landscaping. Due to the triangular shape of the lot there is a need to locate the building envelope in the larger part of the new lot resulting in this built form being brought closer to the existing heritage dwelling.

60

Mr Butler was of the view the heritage significance of the existing dwelling would be adversely impacted upon as any resultant dwelling on the new lot would impact on the view of the existing heritage dwelling which should be seen in its original garden setting and its three dimensional attributes. The location of the building envelope showed the new dwelling would to a certain extent block views of the heritage dwelling when rounding the curve of Broadway. It was his view that the east elevation of the heritage dwelling facing into the garden which can readily be viewed from the curve in Broadway is the principle entrance of the dwelling, whereas Ms Riddett was of the view there is not only the eastern entry but also the northern entry fronting onto Broadway.

61

A recent decision of the Tribunal in relation to the land at 54A Broadway[18] allows for the subdivision of this land which has a total area of 1029m² into two lots of 528m² and 501m², but requires specific design concept plans of the proposed dwellings to be built on the lots to be incorporated under a Section 173 Agreement. It was Member Komesaroff's view in allowing this development that it was too risky in Precinct 26.4 Russell Estate to allow blanket subdivision and simple building envelopes.

62

Whilst this site is on the other side of Sefton Place to the subject land, it has a very small frontage to Broadway and the proposed dwellings to be built on 54A will have a frontage to the railway line opposite. The smaller lot on the subject site is more prominent in the context of Broadway sitting as it does on the curve. Any dwelling on this lot would need to be appropriately designed to fit within the context of the area with the large Queen Anne villas and to do this Mr Butler was of the view the proposed dwelling would be required to have a steeply pitched roof which would restrict the views to the east elevation of the heritage dwelling.

63

The Tribunal's approval of the recently constructed single dwelling design at 64 Broadway[19] as well as the subdivision approval with specific design at 54A Broadway have focussed on the need to consider the area in the context of Precinct 26.4 Russell Estate and not in relation to the wider context of HO159 and I think this is the correct approach.

64

Whilst there is proposed to be a building envelope imposed on this smaller lot and any proposed dwelling will be required to obtain a permit under the provisions of the Heritage Overlay I consider that given the significance of the area and the particular location of this lot on the curve of Broadway, where it will be seen in relationship to the existing heritage dwelling, it is more appropriate that a specific design concept be part of the application.

65

I would agree with Mr Butler and adopt the approach taken by Member Komesaroff that there is a need to know the type of development proposed before the subdivision should be allowed to proceed. It may be that a specific design could indicate views to the existing heritage dwelling would not be compromised and that the design would allow the dwelling to sit comfortably within the context of the surrounding area as was the conclusion of Member Komesaroff. I consider that this should be readily seen before there is any conclusion drawn as to whether any resultant future development will have an adverse affect on the appearance of the heritage dwelling or the heritage character of the area.

66

The application for review is refused. The Council, Ms Blyth and Mr Winstanley, as well as the Railways are all owners of land benefiting from the registered restrictive covenant attached to the subject land. I cannot be satisfied that there will be no detriment of any kind to the beneficiaries if the covenant is varied. Given the reason for the subdivision is to allow for the construction of another dwelling, whilst the subdivision itself being a realignment of a boundary and construction of a fence will not have an adverse impact on the heritage significance of the area or the existing heritage dwelling it is not appropriate at this time that they be permitted. Any consideration of subdivision to enable the construction of a dwelling must be after such time as the covenant is varied and following consideration of the specific design of the proposed dwelling to ensure a proper assessment of whether there would be any adverse impact on the heritage significance of the area and existing heritage dwelling.

[1] Certificate of Title Volume 8558 Folio 104

[2] Certificate of Title Volume 6841 Folio 163

[3] Section 60 (5) (a) Planning and Environment Act 1987

[4] Section 60 (5) (b) Planning and Environment Act 1987

[5] [1963] VicRp 93; (1963) VR 688; Martens v Flight Refuelling Ltd [1961] 2 All ER 696; Forestview Nominees Pty Ltd and Anor v Perpetual Trustees WA Ltd (1995) 133 ALR 465

[6] Arifoglou v Stonnington CC [2003] VCAT 1461

[8] 15 AATR 11

[9] [2002] VCAT 1027 (20 September 2002)

[10] (1908) 2 Ch 374

[11] (2000) VSC 258

[13] McFarlane v Greater Dandenong CC & Ors [2002] VCAT 469 (26 June 2002)

[14] Dukovski v Banyule CC [2002] VCAT 2789

[15] Clauses 21.02, 21.05, 21.07 Boroondara Planning Scheme

[16] Residential Urban Character Study 1995 - 96 Neighbourhood Character Statement 104 a reference document to Clause 22.07 Boroondara Planning Scheme

[17] Broadway Concepts Pty Ltd v Boroondara CC [2006] VCAT 484 (5 April 2006) and 1322 (7 July 2006)

[19] Valibhoy v Boroondara CC {2003] VCAT 1 (3 January 2003)