2. The Responsible Authority is directed to issue a permit allowing for the removal of the Registered Restrictive Covenant contained in Instrument of Transfer No. 1107522 referred to in Certificate of Title Volume 4713 Folio 500, being the land known as Lot 72 on PS 06531 and more particularly described as 2 Webster Street, Malvern East, subject to the following conditions:

1 This permit has no effect until a plan has been certified in accordance with Section 6 of the Subdivision Act 1988.

2 This permit will expire if the following circumstance applies:

i. The plan is not certified under Section 6 of the Subdivision Act 1988 within two (2) years of the date of this permit.

ii. The plan is not registered with the Registrar of Titles within five (5) years of the date of certification.

A. The applicant is advised that the covenant is not removed from the title until a plan certified under Section 6 of the Subdivision Act 1988 is registered by the Registrar of Titles.

1 This is an application for review of the decision of the Responsible Authority to refuse to remove a restrictive covenant contained in Instrument of Transfer No. 1107522 referred to in Certificate of Title Volume 4713 Folio 500 on land known as 2 Webster Street, Malvern East.

2 The only ground on which the application was refused states:

1. The covenant removal should be considered in conjunction with a proposed development application for the land, so as to enable a full and proper assessment of the impact of the covenant removal on beneficiaries.

3 The land, known as Lot 72 on PS 06531 was originally contained in Certificate of Title Volume 3851 Folio 152. The plan of subdivision contained 128 lots. Lot 72 was transferred out of the parent title by Instrument of Transfer No 1107522 on 17 May 1923. The Instrument of Transfer contained a restrictive covenant that burdened the land and provided that the purchaser and any successors in title shall not "... At any time erect more than one dwelling house on the said land ..."

4 A total of 33 lots were transferred out of the parent title after the subject land and therefore became the beneficiaries of the covenant. Many of these lots have in turn been subdivided resulting in a total of 47 lots now benefiting from the restrictive covenant that applies to the subject land. It is understood that the majority of lots within the subdivision were also burdened by a similar restrictive covenant.

5 As a result of the application for removal of the restrictive covenant applying to the subject land, the application was advertised with notification being given to all the beneficiaries of the covenant. No objections were received to the application for removal, more specifically no objections were received from any beneficiary of the covenant.

6 The report to the Responsible Authority from a council officer, recommended that the Responsible Authority, allow the application for removal. The officers' report concluded that as there were no objections from any beneficiaries and given the surrounding neighbourhood now comprised both single and multi dwellings on allotments, the removal of the covenant would not materially alter the neighbourhood character and no one benefiting from the restrictive covenant would suffer any detriment if it was removed.

7 The ground of refusal does not address the issue of removal of the restrictive covenant and is not a valid ground of refusal. There is no requirement under the Planning and Environment Act 1987(PE Act) or the Stonnington Planning Scheme that requires an applicant for removal of a restrictive covenant to also make an application for a particular development on the land at the same time. The ground of refusal is not based on any legal requirement. It is irrelevant to a consideration of removal of a restrictive covenant as to what may or may not occur at some time in the future on the land. The relevant issues that apply when considering the removal of a covenant are, for the Responsible Authority and Tribunal, the matters referred to in Section 60(5)(a) and (b) PE Act which provides:

The responsible authority must not grant a permit which allows the removal or variation of a restriction referred to in sub-section (4) unless it is satisfied that:

(a) the owner of any land benefited by the restriction (other than an owner who, before or after the making of the application for the permit but not more than three months before its making, has consented in writing to the grant of the permit) will be unlikely to suffer any detriment of any kind (including any perceived detriment) as a consequence of the removal or variation of the restriction: and

(b) if that owner has objected to the grant of the permit, the objection is vexatious or not made in good faith.

8 Consideration is therefore confined to the question of whether there will be any detriment suffered by the beneficiaries of the covenant by the removal of the benefit afforded by the covenant. There is no requirement to consider what detriment if any would be suffered by persons who are not beneficiaries of the covenant, such matters being more appropriately considered, if and when there is an application for development on the land, at that particular time. I consider that the Responsible Authority in the present matter by basing its ground of refusal on irrelevant matters has failed to properly consider the matter and has in effect not properly complied with the requirement of the PE Act in considering the matter.

9 From the evidence presented to me, a total of 35 lots within the original subdivision have already been developed with more than one dwelling on each lot, a majority of these lots were also burdened by a covenant, in similar terms to the covenant that relates to the subject land and in each case the covenant has been removed. As a result the area now comprises a considerable number of lots that contain more than one dwelling which creates an area that differs markedly from only one dwelling on a lot as envisaged by the covenant. In addition no beneficiary of the covenant has objected to its removal, although I am required to consider whether any beneficiary is likely to suffer any detriment, as a result of the removal, even if there is no such person objecting before me. On the evidence presented to me I can only but reach the conclusion, as did the council officer, that there would be no likely detriment suffered by any beneficiary of the covenant and that therefore the covenant could be removed.

10 For the above reasons the decision of the Responsible Authority is set aside and a permit is granted.