[2004] VCAT 47

1. The decision of the Responsible Authority dated 28 March 2003 in permit application M/2001/599 is set aside. A permit is granted for a two lot subdivision.

2. The Responsible Authority is directed to issue a permit for a two lot subdivision of land at 54-56 Mt Dandenong Road, Croydon subject to the following conditions:

1. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

2. All access ways (including roads and/or common property driveways) and drainage must be constructed in accordance with plans and specifications to the satisfaction of the Responsible Authority.

3. Prior to the issuing of a statement of compliance, vehicle access to serve each lot in the subdivision shall be constructed and appropriately drained to the requirements and satisfaction of the Responsible Authority.

4. Prior to the issue of a statement of compliance, or at such later date as the Responsible Authority may approve in writing, a landscape plan incorporating:

(a) a survey of all existing vegetation and landscape features;

(c) a schedule of all proposed trees, shrubs and ground cover which will include the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass , lawn or other surface material as specified. (NB. An indigenous landscape planting concept is to be used).

Shall be submitted to and approved by the Responsible Authority. An endorsed copy of the landscape plan shall form part of this permit.

5. The owner of the land must enter into agreements with the relevant service authorities for the provision of water supply, drainage, sewerage, electricity, gas and telecommunications to each lot.

6. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant referral authority in accordance with Section 8 of that Act.

7. Access of Lot 1 to Mt Dandenong Road will be an access located at the extreme western end of the Mt Dandenong Road frontage of Lot 1.

a. the subdivision plan is not certified within twelve (12) months of the date of issue of this permit; and

b. statement of compliance is not obtained within five (5) years of the certification of the plan;

or any extension of such periods the Responsible Authority may allow, in writing, upon application made before or within three months after such expiry.

3. The decision of the Responsible Authority dated 28 March 2003 in permit application M/2001/600 is set aside. A permit is granted.

4. The Responsible Authority is directed to issue a permit that allows for the variation of the Registered Restrictive Covenant contained in Certificate of Title Volume 9549 Folio 259 in Instrument of Transfer No. 2101208 for Lot 1 of Plan of Subdivision 126721 to allow for the construction of a second dwelling.

1 Application P1715/2003 is an application for review of the decision of the Responsible Authority to refuse to grant a permit for a two lot subdivision of land at 54-56 Mount Dandenong Road, Croydon.

The site is inhibited by a restrictive covenant, contained in instrument of transfer number 2101208, LP 16996 ,which has not been varied by virtue of the Notice of Refusal issued for Planning Application No. M/2001/600. it is considered, given the covenant over the subject site, that approval of this application would be in contravention of the planning and Environment (Restrictive Covenants) Act 2000.

3 Application P1716/2003 is an application for review of the decision of the Responsible Authority to refuse to vary the registered restrictive covenant contained in Instrument of Transfer No. 2101208.

1. The Council is not satisfied that owners of land benefited by the covenant will be unlikely to suffer any detriment of any kind, including perceived detriment.

2. Council, as the Responsible Authority, is not satisfied that the objection received from an owner of land benefited by the restriction is vexatious or not made in good faith.

5 The subject land is an irregular lot with a total area of 2017m² with a frontage of 32.16m to Mount Dandenong Road. A single storey dwelling currently exists on the lot towards the rear.

6 It is proposed to subdivide the land into two lots; Lot 1 to be 864m², is to be developed with a single storey dwelling and Lot 2 of 1153m² is to contain the existing dwelling. A building envelope is proposed on Lot 1 incorporating setbacks and the provision of vehicular access via a new driveway from Mount Dandenong Road. A new driveway along the western boundary will provide access to Lot 2. To achieve this there is also a proposal to vary the registered restrictive covenant.

7 The registered restrictive covenant that applies to the land is contained in Instrument of Transfer No.2101208 dated 16 September 1947. The relevant parts of the covenant provides:

I the said Ernest Graham Ashton for myself heirs executors administrators and transferees Hereby Covenant with the said Doris Mary York Syme her heirs executors administrators and transferees registered proprietor or proprietors for the time being of the land remaining untransfered in Certificate of Title Volume 6954 Folio 1390738 that I or my transferred will not at any time in subdividing the land transferred erect permit or consent to be erected more than one building except for outbuildings appertaining thereto on any part of the land.... on an area of less than one acre nor erect on the said land hereby transferred any dwelling at a lower cost than Twelve Hundred pounds exclusive of outbuildings nor erect any such building on the said land except by or under the substantial supervision of a registered architect.[Tribunal underlining]

8 Section 60(5) Planning and Environment Act 1987 provides:

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

(a) The owner of any land benefited by the restriction ... 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 to the permit, the objection is vexatious or not made in good faith.

9 The application was advertised to 318 residences that were deemed to be affected, including beneficiaries of the restrictive covenant. One objection was received from Mr & Mrs Schulties who own a property at 6 Glenwood Drive, Croydon. This property does not adjoin the subject site and is located some distance away.

10 At the commencement of the hearing Mr Covington, the owner of land at 7 Inverness Court, Croydon was joined as a party. Mr Covington claims he like Mr Schulties is a beneficiary of the covenant and was not notified of the variation proposal. He was represented by Mr Schulties. Mr Covington's property like Mr Schulties does not adjoin the subject site and is some distance away.

11 Mr Kane submitted Mr & Mrs Schulties and Mr Covington are not beneficiaries of the covenant as their properties are part of a separate subdivision.

12 On the basis of the documentation provided to the Tribunal, I conclude that both the properties owned by Mr Shulties and Mr Covington are beneficiaries of the covenant that applies to the subject site.

13 The subject land was originally contained in Lot 70 on PS 16996 in Certificate of Title 6954 Folio 738. This lot was transferred out of the original title on 16 September 1947 by Instrument of Transfer No 2101208, which contains the relevant covenant. On the transfer of this land Certificate of Title Volume 7210 Folio 951 was created. This land was further subdivided in PS126721. Lot 1 on that plan of subdivision is the subject site and is contained in Certificate of Title Volume 9549 Folio 259.

14 Mr Schulties and Mr Covington's land was originally contained in Lots1, 2 and 71 on PS 16996 being part of Crown Allotments 23A, 23B and 26B and were also contained in Certificate of Title Volume 6954 Folio 738. These lots were transferred out of this title after the subject site on 19 March 1953 and was referred to in Certificate of Title Volume 7890 Folio 053.

15 The land contained within Certificate of Title Volume 7890 Folio 053 was subdivided into two lots under PS 81224 and as a result Certificate of Title Volume 8732 folio 777 containing Lot 1on this plan of subdivision was created on 19 July 1968. Lot 1 was subdivided under PS 83791.

16 Mr Schulties property being Lot 50 on PS 83791 and contained in Certificate of Title Volume 8810 Folio 059, was derived from Certificate of Title Volume 8732 Folio 777, which was derived from Certificate of Title Volume 7890 Folio 053, which was derived from Certificate of Title Volume 6954 Folio738.

17 Mr Covington, who is the owner of land at 7 Inverness Court, Croydon, is more particularly described as Lot 66 in PS 83791. The same subdivision that created Mr Schulties lot.

18 The relevant wording of the registered restrictive covenant provides:

Hereby covenant with the said Doris Mary York Syme her heirs executors administrators and transferees registered proprietor or proprietors for the time being of the land remaining untransferred in Certificate of Title Volume 6954 Folio 1390738'.

19 The land owned by Mr Schulties and Mr Covington was land that remained untransferred. I therefore conclude that both Mr Schulties and Mr Covington own land that benefits from this covenant.

20 The Tribunal has in a number of matters considered the application of Section 60(5) PEA and in Mc Farlane v Greater Dandenong CC & Ors [2002] VCAT 469 (26 June 2002) the Tribunal distilled the following propositions the Tribunal considered in C Carabott & Ors v Hume City Council v T Scuderi 22 AATR 261 in relation to the consideration of Section 60(5)(a) PEA and stated:

1. It is 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.

2 Compliance with planning controls does not, of itself, and without more, establish that a covenant beneficiary will be unlikely to suffer detriment of any kind. Consideration of a proposal from a planning perspective often requires a balancing of competing interests. There is no such balancing exercise involved in the consideration of the issue which arises under paragraph (a). the nature of the enquiry is fundamentally different.

3 The mere assertion of the existence of a detriment is not sufficient to demonstrate its existence. On the other hand, loss of amenity will constitute a detriment, and in this regard amenity includes "an appeal to aesthetic judgement, which is difficult to measure, however the notion of `perceived detriment' specifically contemplates that this consideration is relevant to the enquiry".

4 The detriment must be made on the evidence before the Tribunal "including the appeal site and its environs".

5 It is not necessary for an affected person to assert detriment. This is so for two reasons: first, because the Tribunal must be affirmatively satisfied of a negative, namely that there will probably be no detriment of any kind; secondly, the Tribunal is entitled to form its own views from the evidence.

21 Both Mr Schulties and Mr Covington live a distance from the subject land and whilst benefiting from the covenant are not as referred to be Mr Kane within the same subdivision, their land having been subdivided at a later date. The size of both their lots and of lots contained within the same subdivision are considerably smaller than the subject land.

22 Both have indicated that they object to the variation of the restrictive covenant to allow a second dwelling on the land, as this would result in loss of existing trees and bird life being part of the natural state of the area. They submit there would be a loss of amenity as a result of the reduction in the size of the block and an impact on residential privacy.

23 Both referred to the protection of the green open spaces in the area and expressed a fear that to allow the variation would create a precedent.

24 With regard to the creation of a precedent, I concur with the comments by Deputy President Bruce in Inberg v Bayside City Council [2000] VCAT 2407 referred to by Mr Kane, where she stated at paragraphs 83 and 92

It seems to me that this objection could be fairly taken as addressed to a fear that one variation may lead to others, in an uncontrolled way and without the merits of the individual proposals being considered.

I do not regard this variation as creating a precedent that would cause other lots subject to the same covenant elsewhere in the subdivision to be either more readily made the subject of variation orders, or more easily developed for forms of housing more intensive than two dwellings.

25 With regard to the other objections raised by Mr Schulties and Mr Covington, both refer to the environment, the green open spaces, existing trees and bird life. The wording of the covenant refers only to buildings and does not refer to any protection of trees or landscaping. Whilst the creation of a building would result in a slight decrease of open land, that is where no building previously existed, this does not necessarily mean that there is a loss of trees, bird life or green open space.

26 The requirements for consideration under Section 60(5)(a) PEA refer to detriment or perceived detriment. Neither property adjoins the subject land. Both live in different streets to the subject land and unless they drive along Mount Dandenong Road are not able to observe the subject land. I am unable to conclude from the submissions presented to me by both Mr Schulties and Mr Covington that on the balance of probabilities they will suffer any detriment of any kind nor do I consider that any other beneficiaries that have not objected will suffer detriment of any kind.

27 Section 60(5)(b) PEA requires that not only is there any perceived detriment but that the objections raised are vexatious and not made in good faith. Mr Kane submitted that the Schulties objections should be considered vexatious on the basis as described by Deputy President Bruce in Inberg at paragraph 99 that

the proceedings are also properly to be regarded as vexatious, if irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless ...

28 With respect to Section 60(5)(b) PEA I am only required to consider the Schulties position as they were objectors to the application. As Mr Covington was not an objector then subsection (5)(b) does not apply.

29 As I have concluded that there is no detriment whatsoever likely to be suffered by the Schulties and as the issues raised relate more to the general landscaping of the area I conclude that their objection is groundless and therefore vexatious.

30 With respect to the application for variation of the registered restrictive covenant I conclude that there will be no detriment likely to be suffered by any beneficiary of the covenant and that the objection by the Schulties is vexatious. The decision of the Responsible Authority is therefore set aside and I determine a permit should be granted for variation of the registered restrictive covenant.

31 The subject land as is the surrounding land is located within the Residential 1 Zone under the Maroondah Planning Scheme and is also covered by a Significant Landscape Overlay No 1 and Design and Development Overlay No 2. There is a mix of residential properties within the neighbourhood. Many are single storey detached dwellings, although a multi-unit development adjoins the subject land and there are some other multi-unit developments in the wider area that encompasses the objectors' properties.

32 The Responsible Authority referred to the character of the environmental landscape and submitted the proposal would result in a change to this landscape. Although allowing a two lot subdivision will result in a second dwelling on the land, the lot sizes created in the subdivision are still well within what is envisaged in the planning scheme as appropriate lot sizes. Lot 1 which is proposed to contain the new dwelling is to be 864m² which is the minimum required under Clause 3.0 Schedule 2 to the Design and Development Overlay - Ridgeline Protection Area B and Lot 2 which will contain the existing dwelling is well above this requirement at 1153m².

33 I am unable to conclude that permitting the subdivision of this lot and allowing a second dwelling to be constructed on a newly created lot that is of a size contemplated under the provisions of the planning scheme will in any way result in a development that is inappropriate for this area.

34 The size of the two newly created lots will continue to maintain the low density character of the area, will have no impact on the character of the existing land use, and the size of the lots allow for the opportunity for further planting and also allows for the retention of existing canopy vegetation. In this respect, I accept that all of the large indigenous tree are to be retained, and any trees proposed to be removed are either dead, decaying or exotic and can be replaced.

35 The proposal is considered to meet the relevant policies contained in the Maroondah Planning Scheme at Clauses 21.08 "Residential Land Use", 21.11 "Environment", 22.01 "Canopy Vegetation Policy" and in particular the "Residential Subdivision Policy" contained in Clause 56. The purpose of which is "to encourage subdivisions that provide a wide range of lot size, are cost effective and meet community standards for health and amenity".

36 There are no issues with regard to overshadowing, loss of privacy or impacts from increased traffic.

37 The decision of the Responsible Authority to refuse the application for a two lot subdivision is set aside, a permit is granted subject to conditions.