A. This application for review is granted, the decision of the Responsible Authority to refuse to grant a permit is set aside and a permit is granted for the proposed outbuilding in its proposed position in accordance with the endorsed plans hereafter provided for and subject to the following conditions:

1. Within two months of the date of this permit, or within any extension of that period consented to by the responsible authority, plans must be submitted to the responsible authority for approval. The plans are to be drawn to scale with dimensions and three copies are to be provided. When approved such plans will be endorsed as evidence of their approval and will be the endorsed plans for the purposes of this permit. The plans are to be in accordance with the plans tendered to the Victorian Civil and Administrative Tribunal in its hearing of planning application for review P1633/2004 and are to be in accordance with the outbuilding as constructed on the land with the construction on the land to predominate, if necessary, over the said plans, but modified to show detailed landscaping on a plan to be prepared by a suitable qualified or experienced landscape designer which plans are to show the proposed landscaping including the details of any vegetation to be retained, the location of all new indigenous and/or native to Victoria plantings, a schedule of plants species and height at maturity, a maintenance schedule and 12 trees of 3 metres height or more to be planted in accordance with the amended landscape plan attached to the letter dated 14 October 2003 of the responsible authority addressed to Mr. D. & Mrs. A. Lento tendered to the Victorian Civil and Administrative Tribunal at the hearing of planning review P1633/2004.

2. This permit does not come into effect until the 12 trees referred to in condition 1 have been planted in accordance with the said plan attached to the said letter.

3. Landscaping works shown on the endorsed plan must be completed within six months from the date of issue of the permit to the satisfaction of the responsible authority and then maintained to the satisfaction of the responsible authority.

4. Except with the further consent of the responsible authority the outbuilding is not to be used for human habitation.

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.

Ms Elinor Nolan, Town Planner of the City of Whittlesea, appeared for the Responsible authority. She presented written and oral submissions.

Mr N J Tweedie, Barrister, appeared on the instructions of the firm of Deacons Lawyers, for the applicants. He presented oral submissions and called Sophie Millicent Curren, Town Planner, as an expert witness. Ms Curren presented and adopted a written report.

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

Application under Section 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 Vegetation Protection Overlay and a Design and Development Overlay (Schedule 1) under the Whittlesea Planning scheme.

(a) The shed as constructed does not comply with the Laurimar Hill Estate Design and Development Plan and therefore is in contravention of the Development Guidelines and the Restrictive Covenant which encumbers the land.

(b) The proposal would set an undesirable precedent for the proliferation of similar outbuildings which would be detrimental to the natural physical features of the area.

(c) The proposal is visually obtrusive in a visually sensitive corridor.

(d) The proposal is contrary to the proper and orderly planning of the area.

(1) The shed complies with the Laurimar Hill Estate Design and Development Plan and is consistent with the Development Guidelines and the restrictive covenant which encumbers the land.

(2) There are already a significant number of similar outbuildings in the immediate environs.

(3) The existing outbuilding is not detrimental to the natural physical features of the area.

(5) The proposal is consistent with the proper and orderly planning of the area.

(6) The existing building will not adversely impact on the amenity of the area.

1 This case concerns a very substantial allotment of land amounting to 4,583 square metres located in a Residential 1 Zone, with a frontage of 51.40 metres to the east side of Laurimar Hill Drive at Doreen. The land has a rear abutment to Yan Yean Road. The urban growth boundary runs along this north south stretch of YanYean Road so that the review site backs onto it. Land on the opposite side of Yan Yean Road, outside the urban growth boundary, is located in a Green Wedge Zone and is devoted to farming activities.

2 The review site is part of a substantial subdivision known as the Laurimar Estate. It, and the estate of which it is part, is served by a system of subdivisional roads. Allotments further to the west are smaller in size, however, those at the eastern extremity of the subdivided land which, like the review site, abut Yan Yean Road, are of a substantial size generally similar to the area of the review site itself. This is apparently intended to provide something of a transition between the closer settlement to the west and the urban growth boundary and farming on Green Wedge land further to the east. Its size is intended to have something of a rural aspect.

3 There is a substantial dwelling under construction on the land. This house is located towards the Laurimar Hill Drive frontage. This is a newly developing area. There are other similar new houses that have been constructed or are under construction in the area, and there are, at present, other vacant allotments. The site, and the area, without being devoid of vegetation, have very little in the way of trees, having been (apparently) open pasture land. Some of these properties have substantial sheds erected on them, some more or less of the scale of the one proposed in the present case, though not necessarily quite as large as it. There is also a substantial farm shed on Green Wedge land visible from Yan Yean Road.

4 This case concerns a large shed. The proposed shed has, in fact, been erected. It is a simple rectangular metal shed with a pitched roof. It is located behind the substantial house erected on the land and has a driveway leading to it. It is a substantial structure, 5 metres high, at the peak of its ridge. It is coloured olive green, both as to its walls and doors, and in relation to its roof (except for some green fibreglass panels in the roof to let in light). It is set back 5 metres from the southern side boundary and 17 or 17.5 metres from the rear boundary. There is a 6 metre wide easement running along that rear boundary.

5 The current case arises from an application for a permit for the presently existing shed. This raises the question as to what provisions in the Planning scheme give rise to the need for planning permission for the shed.

6 The land is located in a Residential 1 Zone, in spite of the very substantial area of the site. No planning permission is needed for such an outbuilding under the Residential 1 Zone planning controls.

7 There is also a Vegetation Protection Overlay. It is common ground that no permission is needed under that control.

8 The provisions giving rise to the need for planning permission are found in the Design and Development Overlay, the provisions of which are found at Clause 43.02 of the Planning scheme, and Schedule 1 in relation to that Overlay.

9 Before discussing the provisions of the Design and Development Overlay, I think it appropriate to discuss a restrictive covenant that applies to the land. Of course the planning scheme, with its Design and Development Overlay, is part of the public law of Victoria in relation to town planning. A restrictive covenant, on the other hand, is a private agreement between parties to a sale of land. In such an agreement the parties can contract, or covenant, to abide by certain legal restrictions imposed on the land sold in favour of other land. In relation to this land, and the restrictive covenant in relation to it, the sale was from R & P Properties Pty Ltd (ACN 071 746 168) to Angela Lento and David Paul Lento as joint proprietors.

10 The restrictive covenant provides that the purchasers will not, without the written consent of the transferor, do any one of a number of things listed in paragraphs (a) to (k) inclusive, which are set out in the relevant Transfer of Land, dated 23 July 2003.

11 It is at this point that serious complications arise. Some of them arise from the unclear and uncertain terms in which the covenant is drafted. Some, on the other hand, arise from the apparently anomalous interrelationship created by the covenant between the private contract provisions of the covenant itself and the public planning provisions of the planning scheme.

12 Fortunately, it is only the first two paragraphs of the restrictive covenant that are relevant for present purposes. The first, in paragraph (a) provides that the transferees must not, without the written consent of the transferor:

"(a) breach any of the Provisions of the Design and Development Plan;"

13 The covenant provisions in the Transfer provide that, for the purposes of the covenant, unless the context otherwise requires:

""Design and Development Plan" means the Transferor's Design and Development Plan approved by the City of Whittlesea in accordance with its Planning Permit No. 706801 issued 20th March 2002 as it may be varied or altered from time to time by the Transferor in its absolute discretion."

I do not really understand how the transferor company can have an absolute discretion to alter an approved plan from time to time. The approval is that of the City of Whittlesea. Does that not mean that its approval of an alteration would be required? If so, the discretion of the transferor can hardly be "absolute".

14 That permit allows the subdivision of land (which includes the review site) in the following terms:

"RESIDENTIAL SUBDIVISION (LAURIMAR ESTATE STAGE 4) IN ACCORDANCE WITH THE ENDORSED PLANS AND TO UNDERTAKE BUILDINGS AND WORKS ON EACH LOT IN ACCORDANCE WITH THE APPROVED DESIGN AND DEVELOPMENT PLAN".

The permit is granted subject to a number of conditions.

15 It can be seen that this permit grants permission for two things and refers to two sets of plans. Firstly, it grants planning permission for a residential subdivision in accordance with endorsed plans provided for in the conditions of the permit. Secondly, it grants permission for the undertaking of buildings and works on each lot created by the subdivision in accordance with the approved Design and Development Plans.

16 This does not mean that buildings and works on lots created, like the review site, necessarily have to be in accordance with the Design and Development Plans. It just means that no further planning permission is required if the buildings and works are in accordance with that plan. If some other buildings and works, not in accordance with the Design and Development Plan are desired, and if planning permission is required for such buildings and works, then further planning permission must be sought and obtained.

17 So far as the restrictive covenant is concerned, and in particular paragraph (a) thereof, it does not necessarily mean that there cannot be a breach of the provisions of the Design and Development Plan. What is required, so far as the agreement between the parties is concerned, and thus so far as the restrictive covenant is concerned, is that the provisions of the Design and Development Plan must not be breached unless the written consent of the vendor company is obtained.

18 Paragraph (a) of the restrictive covenant refers to the Design and Development Plan which is not created in relation to the restrictive covenant itself, or pursuant to the agreement which contains the restrictive covenant. On the contrary, it is created under the provisions of the Planning scheme, specifically the Design and Development Overlay Provisions, including Schedule 1 thereof.

19 The purpose of the Design and Development Overlay, according to Clause 43.02, apart from implementing general planning provisions, is to identify areas which are affected by specific requirements relating to the design and built form of new development. The review site, and surrounding land, is so identified.

20 Clause 43.02-1 contains reference to design objectives. It says that a Schedule to the Overlay must contain a statement of the design objectives to be achieved for the area affected by the Schedule. Clause 1 of the Schedule, under the subheading Design objectives provides:

"To implement the overall objectives of the "Mernda Local Structure Plan Part 1" and the "Laurimar and Yan Yean Overall Development Plan" through subdivision stage specific design elements."

21 I am informed by Ms Nolan, who appeared on behalf of the Responsible authority, that the Structure Plan Part 1 and the Overall Development Plan referred to in the objectives are general documents that do not assist in relation to the determination of this case. Quite apart from that, I have found the phrase "subdivision stage specific design elements" rather difficult to understand. The representatives who appeared at the hearing apparently also find this phrase rather difficult. Whilst the phrase remains obscure, the purpose of the control and the Schedule must also remain obscure. Insofar as one might enquire as to the purpose of the control, for the purpose of determining whether permission should be granted under it, the task is complicated by such obscurity. The best I can make of it is to say that, as subdivisional stages are designed and approved, they are to include design elements whereby the overall objectives of the named plans are to be achieved. However, in view of those plans and their objectives being, according to the representative of the responsible authority, too general to be of assistance in relation to the present case, it appears that I can disregard them.

22 There are some other provisions in relation to the Design and Development Overlay which I will now refer to. Clause 43.02-2 provides that a permit is required to construct a building and carry out works, although this does not apply if a Schedule to the Overlay specifically states that a permit is not required. Buildings and works must be constructed in accordance with any requirements in the Schedule and the Schedule may include requirements in relation to building setbacks, height, plot ratio, landscaping and other requirements relating to the design or built form of the new development. Finally, so far as Clause 34.02-1 is concerned:

"A permit may be granted to construct a building or construct or carry out works which are not in accordance with any requirement of a Schedule of this Overlay, unless the Schedule specifies otherwise."

There is no such specification in the schedule that is relevant to this case.

23 Turning now to Clause 2 of the Schedule, it provides:

A permit is required for all buildings and works except for residential buildings which meet all of the following requirements:

* Located with the rear half of a lot (sic, query "within" the rear half of a lot) and no closer than 5 metres to a street frontage; within the building envelope forming part of the approved Design and Development Plan;

24 For the purposes of this case I assume that "residential buildings" does not include a residential outbuilding. The current proposal is for a residential outbuilding with a height of 5 metres, so that it exceeds the limitation of 3.6, and an area of 240 square metres, so that it exceeds the limit of 40 square metres.

25 The third dot point refers to the approved Design and Development Plan without having said what that is. However, a further paragraph, within Clause 2 of the Schedule, makes further mention of the Design and Development Plan. It provides:

Prior to the issue of a planning permit for the construction of a building or the carrying out of works on individual allotments contained within the relevant subdivision stage plans, a "Design and Development Plan" must be approved by the responsible authority. The Plan may include a written report or plans or a combination thereof and must address the design objectives and requirements regarding the following elements:

* Methods for the protection of native vegetation where appropriate."

26 The Schedule contains some decision guidelines in its Clause 3, but they do not relate to a decision on whether a planning permit should, or should not, be granted. They relate to the question of whether approval should be given to a proposed design and development plan.

27 A document has been tendered as the Design and Development Plan. It is entitled "Laurimar Hill Estate, Design and Signed Development Plan, Laurimar Hill Estate Design Guidelines, prepared in accordance with Permit No. 706801 issued by the City of Whittlesea, 20th March 2002". The document has been stamped and signed in the following terms:

Plan referred to in Permit to use and/or develop land.

.................................. (indecipherable) 5.6.2002

28 This document is tendered as the Design and Development Plan under Clause 2 of Schedule 1 of the Overlay and thus the Design and Development Plan referred to in paragraph (a) of the restrictive covenant.

29 This Design and Development Plan is, in my opinion, a confusing and badly drafted document. However, it is not necessary to try and understand all of it. Plus it is common ground that the shed that has been constructed, and for which planning permission is now sought, does not comply with its provisions.

30 As previously observed, it is not legally necessary for there to be compliance with the Design and Development Plan. Insofar as the restrictive covenant refers to it, it can be breached with the consent of the vendor. So far as the planning permit is concerned, no further planning permission would be required for a building or works that complies with the plan, but that does not prohibit such building or works outside the limitations of the Design and Development Plan. If planning permission is required for such building and works, then it can be applied for and obtained, as exemplified in the application giving rise to this review proceeding. Furthermore, Clause 43.02-2 specifically provides that a permit can be granted for the construction of buildings and works that are not in accordance with the requirements of the Schedule to the Overlay, and that must include a Design and Development Plan under the Schedule, unless the Schedule specifies otherwise. I find no contrary specification in the Schedule.

31 It is common ground that a permit is needed under the Overlay because the shed exceeds 3.6 metres in height and 40 metres in area. It is also contended that a permit is needed because the shed extends, to the extent of 2.5 or 3 metres, beyond the building envelope specified in the Design and Development Plan for the construction of a house and outbuildings on the land. That envelope finishes 20 metres east of the western side boundary along Yan Yean Road. The constructed shed has its eastern wall 17 or 17.5 metres from the eastern boundary of the land and thus extends, to the extent of 3 or 2.5 metres beyond the envelope.

32 I will discuss the planning merits of whether the permit sought should be granted hereafter. In the meantime, I return to the restrictive covenant. I have already mentioned the restriction in paragraph (a) to the effect that there should not be a breach of the provisions of the Design and Development Plan, except with the written consent of the vendor company. The second paragraph, subject to a similar exception where the consent of the transferor is obtained, prohibits:

"(b) construct or permit to be constructed any residence, or any alterations to a residence, without first obtaining the vendor's written design approval to the building design plans, elevations, sections, specifications, exterior colors and finishes on the residence, and the driveway, and landscaping plans for the garden;"

33 It can be seen that this paragraph refers to the vendor whereas, so far, the covenant has referred to the vendor as the transferor. Nothing turns on this. It means the vendor company.

34 There is a note saying that, in the covenant, unless the context otherwise requires:

""Residence" means a detached house and any garage and outbuildings."

35 Thus paragraph (b) provides that the purchasers are not to construct any residence, including outbuildings, without first obtaining the vendor's written design approval.

36 It is not necessary to inquire, for the purposes of this case, as to that approval having been obtained in relation to the house. An approval was obtained in relation to the shed. However, the shed, as approved, and as depicted upon a stamped plan (indistinctly stamped, but dated 28th July 2003), was for a smaller shed than that which has been constructed. It is not greatly smaller than the one that has been constructed. It is still a very substantial shed. It is marginally narrower than the shed that has been constructed. The difference in width is, in my opinion, trifling and insignificant, having regard to the scale of things. The shed depicted in the plan is, nevertheless, shorter in length than the shed that has been constructed. The stamped plan purports to be a landscaping plan. Various landscaping items are depicted on the plan. A row of 5 substantial trees are depicted inside the rear (eastern) boundary. Other trees are depicted in the vicinity of and around the shed.

37 The applicants have sought the approval of the vendor company in relation to the shed as constructed. This has been granted in the following terms in a memorandum on the letterhead of Novatec Design Pty Ltd which, I am informed by the representatives to the parties, I can regard as the vendor company for the purposes of this case. Apparently Novatec Design Pty Ltd is its agent. The memorandum is dated 14 October 2003 and is addressed to Das Angelakos, City of Whittlesea, in relation to Lot 5. Lot 5 is the review site. Das Angelakos is the planning enforcement officer of the responsible authority. The memorandum reads:

"In reference to the above block, it has been noted at our site visit with yourself yesterday that the shed has not been constructed in accordance with the approved Site plan and Landscaping plans.

Given the size of the structure Laurimar Hill is requesting additional advanced trees be planted immediately to a minimum height of 3.0m tall along the Yan Yean Road frontage as well as the southern boundary frontage.

The enclosed marked up landscaping plan indicates the location in which the trees are to be planted.

The alternative to planting the trees is to modify the structure in accordance with the original submitted Site plan and Landscaping plan of 15.0 X 11.0m x 3.0m high.

If you have any queries please do not hesitate to contact me on 0417 569 693.

38 The attached plan is a landscaping plan that depicts the outbuilding as built. It shows the planting of 6 extra trees between the eastern side of the outbuilding in Yan Yean Road, and a further 6 in the setback from the southern boundary between the outbuilding and that boundary. There is a notation in relation to each group of 6 trees which, in each case, reads:

39 Ms Nolan pointed to, and sought to rely on ambiguity and uncertainty about this document of Novatec Design Pty Ltd. However, some of what it says is clear explicitly from what is written and what is drawn on the accompanying plan. Other things are clear by necessary implication. In the circumstances I regard such necessary implications as being as good as an explicit statement.

40 The memorandum records an inspection of the previous day by Aranka Young on behalf of Novatec Design Pty Ltd. That inspection was conducted after the outbuilding was constructed in its present form, the form for which permission is now sought.

41 I think it is also clear that Novatec Design Pty Ltd, on behalf of the transferor, consents to rectification of the situation by either of two alternative means. One would be the modification of the structure to accord with the original plans, and the other would be to retain the existing structure subject to the planting of 12 extra trees in the places indicated on the plan. I consider that the notation on the plan conveys that the trees are to be of 3 metres height when planted, rather than that they should ultimately attain that height.

42 Compliance with the restrictive covenant is really a matter between the transferor and the transferee. For some reason the Responsible authority, through its officers, took a hand in the matter. They succeeded in rather complicating it. A letter was written to the applicants on the letterhead of the Responsible authority dated 14 October 2003. It was written by Roger Sucic, Manager of Planning Services. He stated that he had had recent discussions with Das Angelakos in relation to the outside shed on the review site. The letter firstly required the submission of a formal planning permit application for the existing shed. Not only that, it required the application to be lodged within 7 days. The letter then goes on to mention discussions (of the responsible authority) with the developer (transferor) and their representative, Novatec Design Pty Ltd. It is recorded that the representations of the company have advised that they are prepared to approve the shed and its current size on condition 12 additional advanced trees to a minimum height of 3 metres are planted along the Yan Yean Road frontage as well as the southern boundary frontage. This, of course, accounts with the memorandum previously mentioned.

43 The letter then goes on to specify the nature of the trees required. That appears to be an embellishment of the Responsible authority. It is not in accord with the memorandum. There is nothing to trace the suggestion of tree species to Novatec. The relevant paragraph reads:

"The tree species must either be "brush box" or "banksia" and must be placed as per the attached copy of the landscape plan."

This was the same landscape plan as was attached to the memorandum.

"You must also ensure that the planting of the required mature trees is done so (sic) by no later than 31 October 2003."

45 Both time limits mentioned in the letter (ie. the 7 days and by 31 October 2003) are impositions by the Responsible authority, not Novatec.

46 The embellishments imposed by the Responsible authority created something of a quandary for the Applicants. They had to plant within a fortnight, but mature trees 3 metres high of the specified species proved to be unobtainable.

47 The Applicants, presumably doing what they thought to be the best thing in the circumstances, proceeded to plant, not 12, but 31 new trees right across the Yan Yean frontage. However, they did not technically satisfy the specifications that had been made by Novatec on the one hand and the Responsible authority on the other. They were not "brush box" or "banksia". They were not 3 metres tall. They were planted closer to the road frontage than the positions indicated for the 6 trees to be planted between the shed and Yan Yean Road. However, there were many more of them and they extended right across the frontage. Planted at reasonably close intervals, they are likely to eventually create a significant hedge. They are "Pittosporum Tenuifolium" (it was observed by Ms Nolan that some species of Pittosporum are regarded as environmental weeds, but it was not indicated that this particular species is so recognised). No trees were planted between the shed and the side boundary in the position where 6 were to be planted in accordance with the plan.

48 It can be seen that there has been no strict compliance with the conditional approval of the shed given on behalf of the transferors in that the trees were not 3 metres tall, they were not planted between the shed and side boundary, where 6 were to be planted, and those between the shed and Yan Yean Road, although more numerous, are planted further away from the shed, and closer to Yan Yean than indicated on the plan. It is also equally obvious that there is nothing to prevent 12 trees of 3 metres height being now planted in the specified position.

49 Whether the transferor is satisfied with what has been done, or would be satisfied if something further was done, or would only be satisfied if the original specification was fully and correctly complied with; is a matter for the transferor. I do not think that it is a matter for me. The transferor may, if it thinks fit, take injunctive proceedings against the Applicants, if the matter is not otherwise resolved.

50 The reason for interest in the restrictive covenant, so far as these planning proceedings are concerned, is the constraint imposed by Section 61(4) of the Planning and Environment Act 1987 (PE Act). The inclusion of that subsection by Section 9 of Act 100 of 2000 from 13 December 2000 is a relatively recent innovation. It creates the certain interrelationship between restrictive covenants as part of private property law on the one hand and public planning law on the other. It does this in as much as it requires that a responsible authority must refuse to grant a permit if it would authorise anything that would be in breach of a restrictive covenant (unless a permit has been issued or a decision made to issue a permit to allow removal or variation of the covenant).

51 The anomaly in relation to the present case soon becomes apparent. Section 61(4) prevents the responsible authority from granting a permit authorising the construction of this shed where the shed is not in conformity with the restrictive covenant, which restrictive covenant in turn refers to the Design and Development Plan. However, the Planning Scheme itself does authorise the grant of such a permit. Furthermore, the restrictive covenant does not, in its terms, impose an absolute bar or impose a mandatory requirement that its terms, or the terms of the Design and Development Plan must be complied with. On the contrary, the restrictive covenant is contingent. The terms of the restrictions and the covenant, including the reference to the Design and Development Plan, can be departed from with the consent of the transferor.

52 It appears to me to be highly anomalous, and contrary to principle, that the power of the responsible authority to grant a permit required under the Planning Scheme can be barred by Section 61(4) and operating in relation to a restrictive covenant such as this one on the whim of a private party who happens to be the transferor in a private sale of land. Is it really intended, and it really appropriate, that this vendor company can effectively grant or withhold jurisdiction of a public Responsible authority making administrative decisions under the public Act of Parliament safeguarding the public interest in proper planning, and to be able to do this , if it chooses, secretly, or for reasons of private advantage, or for no reason, or for reasons that have got nothing to do with town planning or for illogical unsatisfactory, perverse or ulterior reasons? In this present case is the Responsible authority, and this Tribunal on review, barred by Section 61(4) from exercising the discretion to grant or withhold a permit apparently intended to be conferred under the Planning Scheme, unless and until the Applicants plant 12 trees, 3 metres tall in the nominated positions and no other.

53 Mr Tweedie, seeking to contend with this problem, suggested an ingenious solution. He said that the matter could be overcome by the imposition of a condition in a permit that might be granted that it is not to come into effect unless and until the transferor consents under the restrictive covenant in relation to paragraphs (a) and (b) thereof.

54 I have described this solution as ingenious. I don't mind it being ingenious, so long as it is also legally valid. My tentative view, formed in the course of argument during the hearing, was that I was satisfied with it. Further reflection causes me to have some misgivings. This is in spite of the fact that Section 60(2)(b), at least for some purposes, recognises the idea of a condition that makes the coming into effect of a permit contingent on some specified event. Section 62 deals with the imposition of conditions on planning permits. Sub-section (2) thereof empowers the imposition of conditions as the Responsible authority thinks fit, and then specifies certain particular sorts of conditions that are given statutory validity by the various paragraphs of Section 60(2), where they might otherwise be invalid or of doubtful validity. Section 62(2)(b) provides that a Responsible authority may impose a condition that a permit will not come into effect unless a specified permit is cancelled or amended.

55 Can I then impose a similar condition saying that a permit is not to come into effect until some other contingency is satisfied, in this case until the transferor company gives its consent?

56 This would be a very sensible and expedient device, and I am attracted to it. My misgiving is that if it is open to impose that form of condition, why would it not be possible to grant a permit for something that would result in a breach of a restrictive covenant, making its effect contingent upon the removal or modification of the covenant. That would have the effect of defeating the purpose of Section 61(4) and the suite of associated amendments that were introduced with it, as part of Act No. 100 of 2000. Whether or not that subsection, and those provisions, can be fairly described as anomalous, or even unfortunate, in blurring the distinction between private contract and property law on the one hand and public planning law on the other, I would not adopt a device that blatantly defeated what I consider to be the intention of those provisions introduced into the PE Act in 2000.

57 I draw particular attention to my misgivings on this point. If it should be that this point is tested on appeal to the Supreme Court in this or some other case, I think it can only be of assistance to point to the problem, and the reason for doubt as to its solution.

58 I do not think that Mr Tweedie's ingenious solution is quite so blatant as the proposition I have expressed concern about. The problem really arises here because of the discretion reserved to the transferor by the terms of the restrictive covenant. I am unhappy about public planning law giving recognition to such a private discretion. All questions of granting a permit having the effect of allowing something contrary to the restrictive covenant would be resolved, in terms of this restrictive covenant, if the consent of the transferor is given. It has been given, subject to a condition in relation to twelve trees. It can potentially be given if the transferor has or does grant consent without that condition or subject to some other condition or subject to a modification of that condition.

59 I do not like the idea of granting a permit that is uncertain as to its terms and effect to the extent of being contingent on the whim of some private party. I think that the best I can do in the circumstances is to consider, and if suitable, grant a permit subject to a condition that it will not come into effect unless and until 12 trees, not less than 3 metres high are planted in accordance with the plan attached to the letter of the Responsible authority, signed by Roger Sucic on behalf of the Responsible authority and dated 14 October 2003.

60 I am tempted to add an alternative allowing the planting of those trees to satisfy the condition but with an alternative solution represented by further consent by the transferor under the restrictive covenant. That alternative, however, rather smacks of delegation to the transferor company. Perhaps the combined effect of Section 61(4) and the particular restrictive covenant in this case creates that effect. I have ultimately decided not to add that alternative, although it might be convenient. It will nevertheless be obvious that, if the transferor company does grant its consent to the shed unconditionally, or on a condition other than one it has specified, and the new condition is satisfied, it will be clear that the existing shed is not contrary to the restrictive covenant and that any permit allowing it will not be allowing something prohibited by a restricted covenant. In other words, it will not be foul of Section 61(4) of the PE Act. I propose to proceed in that way.

61 I come then to consider the planning merits of the proposal for this outbuilding. In this connection I have already referred to the purpose and design objectives of the Overlay provisions under which planning permission is required. The position in this connection seems to be as follows: If the purpose of the Design and Development Overlay, expressed in the design objective in Clause 1 of the Schedule to the Overlay provision is to implement the overall objectives of the "Merndah Local Structure Plan Part 1" and the "Laurimar at Yan Yean Overall Development Plan" through the subdivision stage specific design elements, and this proposal is not relevant to the objectives of those generalised plans, and this proposal is not relevant to a subdivision, whether by stage specific design elements or otherwise, it is hard to see how I can derive much assistance or guidance from the purpose or objectives of the overlay control.

62 I now consider the grounds of refusal set out in the Notice of Refusal of the Responsible authority dated 20 April 2004.

63 The first reads "The shed as constructed does not comply with the Laurimar Hill Estate Design and Development Plan and therefore is a contravention of the Development Guidelines and the Restrictive Covenant which encumbers (sic, encumber) the land".

64 I have already dealt with the question of the restrictive covenant.

65 Otherwise, ground (a) "begs the question". If the proposal complied with the Laurimar Hill Estate Design and Development Plan, which is the Design and Development Plan for the purposes of the Design and Development Overlay and its First Schedule, and therefore the Development Guidelines or Design Guidelines contained therein, it appears that no question of needing permission would arise. In any event, these documents contemplate the possibility of their guidelines being exceeded, but require consideration as to whether they should be exceeded, in the particular circumstances of a particular proposal. The document at its 4.18 starting on page 22 deals with sheds, workshops and animal shelters. The aim under this section is to promote sensitive placement and design of sheds and outbuildings. It says that the design and location of these structures must be unobtrusive and located at the rear of the property. (This one is at the rear.) Structures are to be less than 10 square metres in area, positioned not less than a metre from a fence and no more than 2.5 metres in height, but the next proposition is that:

"Structures outside these parameters require design approval and where allowed will generally be required to match house style and materials."

66 Of course these constraints of 10 square metres and 2.5 square metres in height are much more restrictive than the 40 square metres and 3.6 metres previously referred to. They are intended to apply, amongst other things, to much smaller allotments to the west. The point is that the provision quoted above specifically contemplates the exceeding of those narrow constraints.

67 The question is, not whether this shed exceeds the Design and Development Plan or the Guidelines therein, but whether the contemplated approval to exceed them should be granted. Properly understood, the mere fact of Guidelines being exceeded is not, in itself, a ground for refusing approval where the possibility of approval is contemplated. It leaves the question of whether such approval should be granted still to be decided.

68 The second ground of refusal is that the proposal would set an undesirable precedent for the proliferation of similar outbuildings that would be detrimental to the natural physical features of the area.

69 To be an undesirable precedent, it would need to be a precedent. Really each proposal has to be considered on its own merits. If this is an appropriate development it should be granted, and not refused for fear that some undesirable proposal might be brought forward later. In those circumstances the undesirable later one should be refused when it is proposed.

70 It is not clear as to the way in which the proposal is said to be detrimental to the natural physical features of the area. The area is relatively, although not completely, flat. The natural vegetation has been removed. There are various "non-natural" developments within the estate, it being for residential purposes. On the other side of Yan Yean Road, beyond the urban growth boundary, there are non-natural farming developments. The only physical feature would appear to be the topography.

71 There are already similar outbuildings, both behind other large dwellings on large allotments, and beyond the urban growth boundary. I say similar without there necessarily being of the same size or design. Although the responsible authority complains that some are built without approval, and that enforcement action is contemplated, others do have approval.

72 The fourth ground of refusal is that the proposal is contrary to proper and orderly planning of the area.

73 Whilst I think this expression does have meaning, I do not think it has application here. If this ground is merely meant to mean contrary to good planning, it is so general and unspecific as not really to mean anything, or to be useful.

74 The third ground is, I think, the pertinent one. It is that the proposal is visually obtrusive in a visually sensitive corridor.

75 The shed is large, and from some points of view, prominent because of its size. That is in spite of it being of a muted olive green colour. However, it is located behind a very substantial house on a very substantial allotment in the midst of other very substantial allotments with substantial houses. It is not so very prominent having regard to its position and colour, in spite of its size. Its position is not only behind the large house, but the land falls in that direction. The degree to which it is visible from public streets or adjoining properties varies with circumstance, but I think the degree of "dominance" or "obtrusiveness" is exaggerated in the submissions of the responsible authority. I think that Laurimar Hill Road has to be regarded as the front of this land. Consequently the shed is to the rear and behind the house. It can be seen from Yan Yean Road but this is a secondary view of the rear of the allotment. It can be clearly seen from some portions of this road, although its impact will be reduced as suitable landscaping grows up.

76 The idea of these very large allotments is to provide a transition to rural land in the Green Wedge Zone beyond the urban growth boundary. A shed like this, in spite of its size, can be seen as an ancillary to residential activities. I also note that the land falls somewhat behind the house, and from the front, the shed is less obvious by virtue of that circumstance.

77 In spite of its size and relative prominence, particularly in the rather bare condition of the land at present, I have nevertheless come to the view that it is acceptable subject to appropriate conditions including landscaping.

78 An objector, who did not appear at the hearing, suggested that the shed was large enough so that it might be used as a store as opposed to an ancillary of the residential use of the land. No evidence or particular reason for this supposition was advanced. Nevertheless, it was adopted by the responsible authority and put forward as a reason for opposing the proposal (although this was not mentioned in the grounds of refusal).

79 The responsible authority, in the draft conditions circulated, included a condition prohibiting the use of the shed except for storage and other incidental activities associated with the normal enjoyment of a dwelling and must not be used for human habitation or home occupation purposes. In so far as this proposed condition is intended to prevent the use of the land for some purpose that is prohibited or which would be prohibited in the absence of a permit, then it is unnecessary. If it prohibits a use for which a permit could be granted, it is inappropriate to try and foreclose that possibility by means of such conditions. Whether such activities should be permitted can be considered and determined when an application is made. In so far as the reference to "home occupation" is intended to prevent a home occupation, as that expression is known in the planning scheme, then I consider the restriction to be unjustified. I propose to revise this condition.

80 It is a large shed that could be used as a store or a factory or, no doubt, for other purposes that might be prohibited or that might require planning permission. That would really become an enforcement matter, if there were contraventions of the planning scheme in any such manner. In the meantime I have no reason to suppose that the shed is other than a residential outbuilding intended as an ancillary to the residential use. It might be used to accommodate vehicles, boats, sporting equipment, machinery and/or entertainment facilities like a workshop and/or games room. The question here is whether the shed, as a physical development, should be allowed, rather than speculations as to whether it might be used for an illegal purpose. A responsible authority, or the Tribunal, might well be suspicious of a proposed development that was obviously excessive and/or unsuited for any legitimate activity ancillary to a lawful use of land, but I do not think concerns of that sort would justify a refusal in the present case.

81 I do not think any of the grounds of refusal have been justified. I consider the shed, in spite of its size, to be acceptable in the particular circumstances of this case including its location in relation to other features and development and the size and nature of the land in which it stands. I therefore propose to grant this application for review, to set aside the refusal of the responsible authority and to grant a permit subject to conditions.