The plan must be generally in accordance with plan of subdivision PS 418760W prepared by Licensed Surveyor John Edwin Chivers ref.6501 version 03 dated 15/12/98 sheets 1 and 2 of 3, but modified to show:

* the location of that portion of the driveway for each lot that lies within the easement of carriageway shown on the plan to the satisfaction of the Responsible Authority;

* the retention of the Eucalyptus viminalis and Quercus species located to the east of the carriageway easement in the fork created by the driveway entry into Lot 1; and

* trees to be retained to a depth of 10 metres from the frontage, generally in accordance with the trees shown as "trees to be retained" on the existing vegetation plan prepared by Habitat landscape and environmental design dated December 1998.

2. The subdivision as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

3. A restriction shall be created on the plan for certification preventing the construction of a road or crossover on any part of the subject land within a distance of 19.60 metres from the frontage except within the area of the driveway as shown on the endorsed plan.

4. Trees identified as being retained on the plans must be retained to the satisfaction of the Responsible Authority.

5. The construction of any new driveway must be in accordance with the recommendations of a qualified arborist. A copy of the arborist's report must be submitted to the responsible authority prior to the works commencing.

6. Reticulated water, sewerage and electricity must be available to each lot shown on the endorsed plans before either lot can be used.

7. Each lot shown on the endorsed plans must be drained to the satisfaction of the Responsible Authority or any other drainage authority.

8. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunications services with that authority's requirements and relevant legislation at the time. The agreements must be to the satisfaction of the Responsible Authority.

9. All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.

10. This permit will expire if one of the following circumstances applies:

(a) the subdivision is not started within two years of the date of this permit;

(b) the subdivision is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

3. The responsible authority is directed to issue a permit in application TPA/24491 accordingly.

Mr T Montebello of Maddock Lonie & Chisholm, solicitors, appeared on behalf of the Responsible Authority ("the Council")

Messrs J Knowles, G A Watterson, E A Bidese and M Kennedy appeared on their own behalf.

Mr S Jones of Counsel, instructed by Michael Psaltis, solicitor, appeared on behalf of the Applicants.

1. These Applications for review were brought under Section 79 of the Planning and Environment Act 1987 ("the Act") for review of the Monash City Council's failure to grant a permit within the prescribed time.

2. Mr Nick and Mrs Tina Pateras ("the applicants"), wished to subdivide the property at 1 Fairview Avenue, Mt Waverley ("the subject land"), into two lots, which would enable a house to be built on each lot. They needed a permit under the Monash Planning Scheme for the subdivision. In order to build more than one house, they also have to obtain either removal or variation of a restrictive covenant ("the covenant") that affects the subject land. They chose to pursue this by way of the option available under the Planning Scheme, under which a permit is required to remove or vary a covenant. There are alternative ways of obtaining variation or removal of a covenant.

3. The details of the Applications are as follows:

Application for Review No: 1998/47383 - Application for permit no: TPA/24485 (lodged 6/3/98).

The original application was for removal of the covenant, but by letter to the Council dated 2 April 1998, Mr R Easton of Easton Consulting, who was acting for the applicants in making the permit applications, proposed to amend this application if the application were to be advertised, so as to substitute a "variation of the covenant to enable one dwelling to be erected on each of Lots 1 and 2", being the proposed new lots.

Application for Review No: 1998/47372 - Application for permit no: TPA/24491 (lodged 10/3/98).

The proposed plan of subdivision was drawn by John Chivers & Associates, reference PS 418760W. It divided a total site area of 3,925 square metres into 2 lots as follows:

4. It is common grounds that the subject land is Lot 44 on PS 17038; being the whole of the land more particularly described in Certificate of Title volume 8490 folio 565.

5. This title is encumbered by the covenant contained in Transfer no.2235181, the relevant part of which is that (among others) the owners for the time being of Lot 44:

"...shall not at any time hereafter erect and construct or allow to be erected or constructed more than one dwelling house on each lot ... which dwelling house exclusive of outbuildings and conveniences shall cost not less that Six hundred and fifty pounds nor have a roof of galvanised iron or tin ...."

6. The instrument of transfer containing the covenant is dated 22 July 1949.

7. It was not suggested that there were any relevant referral authorities.

8. Mr Montebello, who appeared, on behalf of the Responsible Authority, described the process by which notice of the two applications for permit was given. They were the subject of separate notice procedures under Section 52 of the Act. In addition, each of the owners identified by the applicant as being a benefiting owner for the purposes of the covenant was notified individually.

9. The Council received nine objections. Four of the objections were from benefiting owners. All nine objections opposed the subdivision of the land, and the four from the benefiting owners objected to the proposal to vary the covenant. Although the date of the advertising was not supplied, the dates of the objections lodged with the Council in response to the notice confirm that the amendment to the application for the covenant so as to substitute "variation" for "removal" took place before notice of the application was given.

10. Of the objectors, Mr Knowles, Mr Kennedy, Mr Watterson and Mr Bidese appeared on their own behalf at the hearings on both 23 December 1998 on the last day, 10 May 1999. Mr Watterson also appeared at the short hearing on 14 April 1999.

11. As well as the parties present at the hearing, an examination of the Tribunal's files showed that Hilmar and Faye Kun of 898-900 Waverley Road both gave a notice under Clause 56 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 of the grounds on which they intended to rely at the hearing, and sent in 6 copies of a submission in response to what was then a standard invitation from the Tribunal to proceed by way of written submission as an alternative to attending. Mr and Mrs Kun were treated as parties in directions for service of documents in the course of the hearing.

12. Mrs E J Bishop appeared to have sent in 6 copies of her original objection to the subdivision, made to the Council, and readdressed to the Tribunal. She did not indicate a wish to take part in the hearing by giving a Clause 56 notice or making a written submission to the Tribunal, although her objection has been read and noted. Her property was referred to by other objectors on several occasions. It appears (from the street numbers and aerial photo) to be one of those that shares part of a common rear boundary with the subject land, and is burdened by the covenant without having the benefit. Mr Kennedy also was of the belief that her lot had the burden but not the benefit of the covenant.

13. Mrs Bishop's house is situated well to the front (west) of her block, with a substantial distance between house and rear boundary, which would give her an advantage of elevation over the subject land and good separation from any future development on it.She did not allege that she was an owner having the benefit of the covenant. She has not been treated as a benefiting owner.

14. At the commencement of the hearing, Mr Jones, who appeared on behalf of the applicants, sought leave to amend permit application no. 24485 under Clause 64 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 by substituting a revised plan for the proposed subdivision. The revised plan had been provided to the Tribunal under cover of a letter from Easton Consulting dated 16 December 1998, and had been circulated to the other parties. The amendment was not opposed.

15. The Tribunal amended the application for a permit to subdivide the subject land by substituting a plan prepared by John Chivers, Licensed Surveyor, reference 6501 version 3 dated 16/12/98, comprising three sheets, for the plan accompanying the application.

16. The main features of the amendment were the creation of building envelopes on each proposed lot, and a detail of the entrance arrangements that produced a common, single entry point instead of two separate crossovers. The subdivisional boundary line was also varied, to avoid passing through any significant trees. The building envelopes restricted any new building to a minimum of 5 metres from any boundary in the case of Lot 1, and 7 metres from existing lot boundary for Lot 2. Lot 2 had a minimum of 3 metres setback from the proposed new subdivisional boundary. The setback from the frontage was in both cases clearly substantial, although not dimensioned.

17. Mr Montebello referred to the fact that although both review proceedings were brought against the Council's failure to decide the permit applications, the Council had made decisions to refuse the applications. Notices of Refusal had been issued dated 15 June 1998, and appeared to have crossed in the mail with the Applications for Review, which were lodged on 18 June 1998. Nothing turns on this. The Notices of Refusal were properly issued before the Applications for Review were commenced, and the Applications are formally amended to refer to "refusal" instead of failure as the nature of each Application. Copies of the Notices of Refusal were tendered without objection.

18. Any informalities or waivers of compliance with forms in the commencement of the Applications for Review, including the requirement for provision of grounds of review (which does not exist in the case of an Application for review of a failure to decide within the prescribed time), are readily waived because there is no indication that any other party suffered any disadvantage on account of the substitution of "refusal" for "failure".

19. As well as formal amendments, the applicant produced further plans to illustrate certain features of draft conditions prepared on a "without prejudice" basis by the Council, and to address issues raised by the Council and objectors. I will refer to them below.

20. The sole ground of refusal for the covenant application was:

1. Owners of land benefitted by the restriction are likely to suffer detriment (including perceived detriment) as a consequence of the variation of the restriction.

21. As Mr Jones pointed out, no attempt was made to identify the nature of the detriment that any benefiting owner might suffer.

22. The grounds of refusal for the subdivision application were:

1. The proposal is not consistent with the unique character and subdivision patterns in the area.

2. The proposed subdivision is not appropriate because of its effect on the amenity of adjoining and nearby properties.

3. The subdivision, if approved, would set an undesirable precedent.

Act and Planning Scheme

23. Under the Act, Section 84B sets out the matters which the Tribunal must take into account in determining an Application for Review, together with a number of discretionary matters.

24. The Monash Planning Scheme applies to these applications. The subject land is zoned Residential C under the existing plan. A permit is required for subdivision under Clause 130-2.

25. Clause 16.2 contains general criteria to assist the exercise of discretions under the Planning Scheme, including an additional suite of criteria relevant only to subdivision.

26. Clause 7-1.5 is relevant to the variation of the restrictive covenant.

27. Under the proposed new VPP format Planning Scheme, the subject land is proposed to be zoned Residential 1, with a Vegetation Protection Overlay.

28. The Council has an Urban Character Study, prepared by Gerner Consulting Group Pty Ltd dated January 1997, under which this area is part of the area identified as Neighbourhood E1. The total extent of this Neighbourhood was not clear. The sub area E1a which was identified by a plan in the extract from the Character Study which was tendered, and which includes the subject land and all the other streets and sites that were referred to by the parties is annotated in the study "no special distinguishing elements".

29. This study is not part of the Planning Scheme, but is a supporting document to the proposed VPP scheme's Overlay control; and the descriptive part provides useful information. The Council took the "Desired Future Character Statement" for the area into account as part of its consideration of "policy implications" of the subdivision proposal. Mr Easton and Mr Montebello both referred to it.

30. Section 60(5) of the Act applies to the application with respect to the covenant. I will set this out below, in the section dealing with the test to be applied to the application for a permit to remove or vary the covenant.

31. The subject land is located on the west side of Fairview Avenue, about 60 metres south of the intersection with Waverley Road.

32. The frontage of the subject land to Fairview Avenue is relatively narrow, being 18.29 metres (60 feet). While this cannot be considered narrow in absolute terms, the predominant frontage dimension in the area is about 30 metres.

33. The subject land, however, has a large area with an unusual configuration, as illustrated by the plans tendered by the Council and the aerial photographs tendered by Mr Easton. It could perhaps most clearly be described as a triangle with the two sharp ends cut off, leaving it five-sided, with the shortest side on its east, being its frontage of 18.29 metres to Fairview Avenue. Its northern boundary (88.39 metres) is parallel with Waverley Road, shared with the rear boundaries of a series of rectangular lots set out at 90 degrees to Waverley Road. The other two main boundaries are created by sharing boundaries with lots that are set out at an angle of 45 degrees to Waverley Road, so that the subject land fills a gap created where the rear boundaries of the angled lots meet the lots set out at 90 degrees to Waverley Road.

34. The subject land thus forms a smaller pentagon within a larger pentagon which is formed by Pleasant View Road, Lum Road and Waverley Road.

35. The northern boundary of the subject land abuts three sites which have their frontage to Waverley Road. On the west, the boundary has a bend in it, forming two sides of the pentagon, and abuts the rear boundaries of three properties (one of which is irregular) which front to Pleasant View Crescent (20.8 plus 60.96 metres). The last side runs north-east (73.94 metres) completing the connection back to Fairview Avenue, being a common boundary with 3 Fairview Avenue.

36. Fairview Avenue runs north-south until the southern boundary of the subject land; it then has an elbow which sends it in a south-easterly direction. Pleasant View Crescent has a similar "elbow" ending literally in a crescent, into which Fairview Avenue joins. The curvilinear streets are a feature of the area; but where the curvilinear street meets the edge of a subdivisional pattern set out in rectangles, awkward shapes result. The subject land is one such awkward shape. It shares a boundary with no fewer than seven other lots; and in addition it has a point of contact with two further lots.

37. The potential for development on the subject land to have a direct impact on neighbouring properties is therefore considerably greater than is normally the case for the usual rectangular subdivisional layout.

38. The applicant submitted that lots of the size of the two proposed lots in this case are common in the surrounding area. The evidence supported this in terms of site area. However, the frontage and the site's connection to so many other properties is unusual, as evidenced by the plans tendered.

39. The aerial photos, in particular, confirm that the area which I will roughly describe as being bounded by Pleasant View Crescent, Lum Road and Waverley Road comprises unusually large and spacious properties with a good many very large houses. Many houses, although not all, are set back from their street frontage by unusually large distances. The western, or far, side of Pleasant View Crescent also comprises large blocks in the main. There is a marked contrast between the Pleasant View area and the development immediately to the west of it, which contains subdivision of rectangular blocks based around bulb courts at sizes which, although they appear to be larger than lot sizes in quite a number of the estates in the area, are still much smaller than the properties within Pleasant View Crescent.

40. There is also a fall to the land. The north end of Pleasant View Crescent is considerably higher than Fairview Avenue, and the west side in particular is elevated well above the subject land. The Feature Survey prepared by Easton Consulting based on a copy of the proposed plan of subdivision (reference dwg 650102 dated 26/2/98) tendered on behalf of the applicants, shows the fall from west to east across the subject land, with contours of 10.13 at the frontage and 26 at the rear (using an arbitrary datum). This is part of the general downhill slope from the top of Wheelers Hill towards the Dandenong Creek valley, which provides excellent views from Fairview Avenue towards the Dandenongs.

41. There is also a slope in Fairview Avenue, as a result of which the subject land is on the crest of a rise going gently downhill to Waverley Road, and more steeply towards the Pleasant View intersection. The objectors who live at 11 and 13 Fairview Avenue are considerably lower than the subject land.

42. An extract from the Monash Urban Character Study - Volume 2 - Citations, dated January 1997, was tendered by Mr Montebello. This related to the area described as "E1". The Character Study (at p.121), classified the area as -

"Wheelers Hill Ridge N-E slopes residential with curvilinear subdivision patterns and lot frontage greater than 30 metres.

The character of this area is set mainly by large remnant Eucalypts within properties and the ridge slope which drops to the north-east at a gradient between 11-20% allowing clear views to the Dandenongs from some properties and streets."

43. Other contributory elements include large remnant eucalypts, steep slopes to the north east, low density of development, large and varied set backs, varied building style, varied building size (moderate to large), and the curvilinear subdivision pattern. The evaluation section commences:

"The topography and the visual dominance of the large remnant Eucalypts set the tone of this area's pleasant, leafy and naturalistic character."

44. Positive qualities of the Character unit which should be retained, protected or enhanced are:

Scale - due to the enclosure [sic] provided by the large Eucalypts.

Diversity - due to the variety of building size, type and style, changes in level due to the slope, and the variations in light, colour and texture, created by the vegetation.

Coherence - due to the unified quality of the tree canopy.

Naturalness - due to the view, topography and remnant vegetation which softens the architecture and

Rarity - due to the scarcity of the character unit within Monash.

45. Mr Easton's evidence on behalf of the applicants included a description of the subject land (which I accept), as follows:

"The site is accessed via a bluestone driveway extending from the approximate mid-point of the Fairview Avenue frontage. This drive meanders for a substantial length of the lot to a 1970s style dwelling located towards the rear of the block.

This dwelling is angled in three wings and extends over an extensive area of the rear portion of the land.

Several significant trees are located on the site and have been identified on the site survey and the landscape assessment plan prepared."

46. Although a clever way of using the shape of the subject land, this house is not what the present owners want, and it is not proposed to be retained. Its demolition is not the subject of planning control or of this hearing.

47. Other improvements shown on the features survey tendered by the applicant included an art studio near the south-west corner. A line of trees parallelled the southern boundary. A substantial tree was located very close to where the proposed new subdivisional boundary would pass. There were stands of trees near the entrance, and in the north-west of the site. Another stand of trees, containing a very substantial specimen, was located between the two east-facing arms of the existing house. Apart from the areas where there were stands of trees, there was perimeter vegetation.

48. The descriptions given of the existing character of the area by the objectors differed in some respects from the statement of Mr Easton. But regarding the two houses immediately to the south of the subject land there was no disagreement. A very large two-storey house had recently been built at no. 3 Fairview Avenue. Mr Jones stated that it was the applicants' intention to use the same architect who was responsible for the existing (new) two storey house at no.3, and a proposed future house at no. 5, which was shortly to replace the existing house on that lot. Very large houses are not unusual in the area, although there are also some quite modest houses, especially in the lower parts of the hill.

49. The aerial photographs confirm the element of diversity in building style referred to in the Character Study. A number of the houses in the area are interesting and individual. Many have swimming pools or other private sporting facilities. The degree of retained vegetation varies. Some of the properties have substantial belts of mature trees; others have relatively little vegetation, apart from some perimeter planting.

50. The proposed subdivision would create two elongated lots divided almost at the centre of the frontage. The pentagonal shape would be divided by a boundary not parallel to either the north or the south existing boundaries, but slanting gently south-west to a point 47.44 metres from the frontage, then turning slightly more south to bisect the existing 60.96 metre western boundary. The northern lot (Lot 1) would be pentagonal, Lot 2 would be a wedge.

51. It was proposed that a reciprocal pair of carriageway easements would be created in the vicinity of the entrance, so that both new owners could share a common landscaped entrance area. A detail of how this would work was given in the landscape plan prepared by Habitat dated December 1998, tendered by Mr Jones. Once past the entrance, which would be partly screened from Fairview Avenue by existing and proposed vegetation, the separate entrance roads would split off and pursue their separate ways.

52. Having inspected the entrance to the subject land and its surrounding area, I am confident that a reasonable landscaping treatment around an entrance of the sort proposed would make it, if not completely impossible for a person outside the property to identify the fact that two driveways led off from the west end of the feature, at least so obscured that the existence of the two drives would cause no diminution in the amenity of the area. The impact of two driveways in disturbing the frontage at two points for separate crossovers would be overcome by this proposal.

53. The other significant further restriction proposed by the applicants was the creation of the building envelopes shown on the amended plan of subdivision, outside which no building would be constructed without the further consent of the responsible authority. The envelopes were delineated in the western parts of the new lots, commencing approximately at the bend in the new common boundary. The building envelopes were offered by the applicants by way of restriction on title.

54. The building envelopes infer very substantial setbacks. Although a number of the houses in Fairview Avenue have such setbacks, it was my observation both from the aerial photographs and my own inspection this is not the inevitable pattern. Several houses have quite ordinary setbacks, and some even have garages built in the setback. In one case, there is a tennis court close to the frontage. By building forward, some owners have maximised their back gardens or yards, where many properties have pools and other recreational facilities.

55. I note that no.11 Fairview Avenue has one of the smallest setbacks in the street. When its owner objected to these applications, there were no proposed building envelopes to illustrate amelioration of possible impacts arising from variation of the covenant. The amended proposal would provide for setbacks far in excess of that of 11 Fairview Avenue or at 894-896 Waverley Road, and greater control over building generally than at present exists by way of the covenant.

56. It is also apparent from the aerial photos, and on inspection, that a common pattern in this area has been to build the house with its broadest dimension across the block, either to maximise views to the east for those properties that have them, or at least to maximise back yards. In a number of cases, this has also maximised the appearance of building bulk from the street. It also means that in many cases, side setbacks from the neighbours are modest for lots of about half an acre. Often the building is placed on an angle rather than parallel to the frontage, minimising the extent to which side walls oppose the neighbouring house, so that this layout has less impact than it otherwise might.

57. It is common ground that a single detached dwelling on the lots proposed to be created would not need a planning permit. However, the covenant affects any proposal to build more than one house - although not the numbers or placement on the block of such ancillary structures as the garages, tennis courts or swimming pools in which the area abounds.

58. A plan showing the properties that had the benefit and the burden of the covenant was tendered by Mr Montebello. This plan shows some 18 properties having the benefit of the covenant. An additional five properties have the burden (by which I mean that their own land is bound by the limitation in the covenant, but they are not entitled by that fact alone to enforce the covenant against anyone else).

59. The information illustrated in the plan was derived by the Council from the particulars supplied at its request by the applicants. Mr Easton, who is qualified as a surveyor as well as a planner, stated in his evidence that he had carried out the enquiries as to which owners were entitled to the benefit of the covenant, and which properties bore the burden. He explained the process which he had adopted. No objection was raised by anyone to the analysis that Mr Easton had produced to the Council, and which was reflected in the Council's submission and the plan illustrating the properties concerned.

60. There was no dispute as to the entitlement (or otherwise) of any of the objectors who appeared at the hearing, or of the identification of the benefiting properties from the plan and copy titles which were tendered by Mr Montebello.

61. The persons now entitled to the benefit of the covenant owe their status to an accident of history, in the sense that the benefit of the covenant has been passed to the successors in title of the owners of the benefiting land as is existed at the date of transfer containing the covenant to the predecessor in title of the owners of the subject land. Only two of the properties immediately abutting the subject land have the benefit of the covenant affecting the subject land. A further benefiting owner has a point of contact on the south western corner of the subject land; and another benefiting owner resides two doors down at 5 Fairview Avenue. No objections have been made by the owners of these last two properties.

62. Four of the benefiting owners, Mr Knowles, Mr Bidese, Mr Watterson and Mr Kennedy, appeared on their own behalf at the hearing on 23 December 1998. Mr Watterson also appeared on 14 April 1999, and all four gentlemen appeared on the last day, 10 May 1999.

63. Mr Knowles' property (894-896 Waverley Road) backs on to the subject land, having its frontage to Waverley Road. Mr Kennedy's property (13 Fairview Avenue) is on the south west corner of the intersection of Fairview Avenue with Pleasant View Crescent, separated from the subject land by 5 properties, some of which clearly exceed 60m in width. Mr Watterson's property (no.11) is next to Mr Kennedy's. Mr Bidese's property is on the other (western, higher) side of Pleasant View Crescent and is plainly elevated well above the subject land, as well as separated from it by the road and the properties which front to the east side of it.

64. Mr and Mrs Kuns, who sent in a written objection, are located next to Mr Knowles on the corner of Waverley and Pleasant View Roads. After confirming the identity of their street address as shown on their Clause 56 notice and its relationship with the Knowles property, I am satisfied that the Kuns do not have the benefit of the covenant.

65. A number of the properties having benefit and/or the burden of the covenant are clustered around the subject land. The majority of them are located within the roughly pentagonal shape created by Pleasant View Road, Lum Road and Waverley Road, although three are shown to be on the far side of Pleasant View Crescent.

66. It is notable that of the five properties having the benefit of the covenant which are closest to the subject land, either abutting it, having a corner abuttal to it, or being opposite or next-but- one to it, only Mr Knowles has objected. The other three benefiting owners who objected are well separated from the subject land.

67. The objectors did not distinguish between those matters that were relevant to the subdivision application and those that were relevant to the covenant application. The main points of the submissions of the benefiting owners can be summarised briefly as follows:

Mr Knowles tendered two written submissions, dated 10 September 1998 and an updated submission of 23 December 1998. Leaving aside procedural questions which it was unnecessary to pursue, there were 4 issues:

* The subdivision of this section of the Wheelers' Hill/Glen Waverley area set out a given number of lots with appropriate covenants to ensure a particular density. Further subdivision, or covenant variation, sets a precedent of increasing this density of living and eventually losing a unique and highly valued feature in Monash that offsets the areas of high density. There has already been considerable subdivision, dual occupancy and multi dwelling unit development of blocks in the areas surrounding this subdivision which give rise to growing concern for overall living amenity of the area. Granting a subdivision permit or covenant variation would be contrary to the intentions of the original subdivision plan and purpose for which the covenant was created. Another recent example of an application for subdivision was referred to, at 28 Pleasant View Avenue.

* Assurances were given in 1992 when a permit was granted for subdivision of 7 Fairview Avenue that the negotiated settlement would not create a precedent. Granting permits in the present applications would confirm that a precedent had been established. This would increase pressure for subdivision and begin the process of destruction of the area. A further instance of subdivision, in Lum Road, has resulted in destruction of trees and vegetation. Further loss of habitat is feared.

* As the owner of a property backing onto the subject land, Mr Knowles submitted that he would be facing a house wall far closer to his property than before. This is a park-like area created by large lot sizes. Waverley Road being a busy road, he valued the quiet as part of the amenity of his back yard. He values the large trees on the subject land, and the sense of space behind his property, which he as an adjoining owner wants maintained. The new lots may be developed for three dwellings each. The frontage area would have to be cleared for access to two lots, impacting on the streetscape. Noise levels would increase.

* Verbal assurances of no loss to amenity have not been incorporated in a formal and binding development plan. They would not be accepted without that. Nor do the plans show which trees would be retained, or the position of buildings on the new lots. The proposed easement at the entrance does not guarantee that only a single crossing would be constructed by new owners.

69. Mr Knowles added a further point that I considered to be a telling one requiring consideration in the context of the subdivision application: there is no shortage of smaller lot sizes in the area, or in other suburbs, for people who wish to buy them. It is not necessary for the applicant to buy a large block and subdivide it in order to get a smaller house site. Indeed, lots of this size are the exception rather than the rule.

70. Mr Knowles' own property was admittedly smaller than the others', at 1,622 sq.m., as a result of resubdivision. The consensus among the objectors was that along the Avenue, the lots were generally half an acre, or 2,025 sq.m. It can be seen from the plans that the lot dimensions are not entirely uniform, although about half an acre can be accepted as a common size for the area.

71. Following the applicants' final revised plan, to which I will refer below, Mr Knowles continued to object on that basis that he would still be able to see part of a new house within the building envelope, even though it would be set back past his tennis court.

72. Mr Kennedy spoke to his written objection. His own property in Fairview Avenue is one of the larger ones, being 0.6 acre, or about 2,400 sq.m. Although he is comparatively distant from the subject land, he considered that the covenant should be protected for the people who have the benefit of it, and was concerned about the precedent value of any such subdivision application as this. He was particularly concerned about a proposal for 7 lots at 28 Pleasant View Crescent, where the lot sizes ranged down to 450 sq.m.. But he also gave details of a number of other applications for subdivision and covenant variation in the area, and their fate. A number of subdivisions have occurred on the estate, although not all the permits granted had been acted on. The information Mr Kennedy recited made the point that only one of the lots for which subdivision was permitted where the permit had been acted on was below 2,000 sq.m. in area. He submitted that no watertight guarantee could be given that any permit would not set a precedent for other development proposals, leading to degradation of the area and its amenity, and also damage to property values.

73. Mr Kennedy also made the following points (in summary):

* This is an area of little public transport. Everyone has between 2 and 5 cars. He lives on the corner, and many residents use the Fairview and Pleasant View road combination to get up the Waverley Road hill. He did not want more traffic.

* Mr Kennedy regularly walks past the subject land and along Fairview Avenue generally. A diminution of the flora near the street to create a new crossover would affect him. The frontages are in line with the main length of Fairview Avenue, and any tree removal would be noticeable.

* The limited housing density, large, treed lots and wildlife produce a unique standard of living. The proposal would reduce this amenity.

74. Mr Watterson also spoke to a written submission. He described his property as over half an acre. He and his wife built their home when they were young, and he has seen the area change from the "bush block" status it had then, through such developments as construction of the road. But the area is still a bush environment, and he prefers an area where flora and fauna dominate, rather than houses. That is why he lives here, in the knowledge that the covenant protects them. He objects to the subdivision on the ground that his amenity would be reduced. He believes his own property's value may diminish if the character of the area changes.

75. Although the subject land is several lots away from Mr Watterson's property, he goes walking in the area nearly every day, and says he can also see the subject land from within his own property. He prefers to see its vegetation than two huge 2-storey houses. Such houses would be seen from the street if set forward on the block or very tall. The setbacks and vegetation in the area are features which he appreciates. But he feared that narrow frontages would mean that there would be two driveways and two letterboxes, and the loss of the attractive plants now flanking the existing single driveway.

76. Mr Watterson was also very concerned about the precedent value of a decision to grant the permits sought. He related this to the possibility that the character of the area might change. On the last hearing day, he repeated that his primary concern was with precedent, not how the variation impacted on him. He argued that if one owner could vary at all, other variations with a greater impact on him might occur later.

77. Mr Watterson also made the point that there is no shortage of smaller lots available; but there are limited supplies of larger lots. He submitted it was unfair for developers to subdivide the large lots, using the attractive nature of the remaining large lots as a major selling point; in such a short street, that could quickly destroy the amenity of the whole street. He was also unsympathetic with the position of an owner who bought a covenanted property and then decided to subdivide it.

78. Mr Bidese stated that he bought into the area in about 1995, after having sought a site specifically in this area. It took a number of bids on different properties, but he was determined to obtain a site in the covenanted area. He moved from about 9 km away, looking for the blocks in the "true Wheeler's Hill area" that are over half an acre. He stated that there were less than 50 such blocks that are over half an acre and not under power lines; that he saw the covenants as a true way to preserve the character of the area, which has a unique ambience; and that he paid a premium to obtain a site in the covenanted area.

79. Mr Bidese's written grounds of objection also stated that the covenant was put in place to protect the unique nature created by the original plan of subdivision, consisting of large allotments.

80. He is uncertain whether there would be a direct visual impact on his property from the proposal. He has extensive views, having "built high" with 80 feet of glass, so he sees the whole area, at present as a well treed one. It would be offensive to him to disturb this.

81. Mr Montebello set out Clause 16-2 of the Regional Section of the Planning Scheme, which contains the general guidelines for the exercise of a discretion:

· If appropriate, the matters set out in Section 60 of the Act.

· The State, Regional and municipal planning policies.

· The purpose of the zone, reserved land or control.

· Any matter required to be considered in the zone, reserve or control.

82. Before deciding on an application to subdivide land, the following additional criteria must also be considered (omitting criteria which are not directly relevant for the proposed subdivision and the issues raised in this instance):

· The existing use and possible future development of the land and nearby land.

· The subdivision pattern having regard to the physical characteristics of the land including existing vegetation.

· The area and dimensions of each lot in the subdivision.

83. Mr Montebello also referred to the absence of controls on the size and layout of lots in this zone, but cited the Council's Neighbourhood Character Study as a matter to be considered in the exercise of discretion.

84. Mr Jones called as a witness Mr R Easton of Easton Consulting, a planner and surveyor who had been the applicants' planning consultant throughout the application process. Mr Easton was the only witness called by any party. Mr Easton's statement included the applicable Regional policy provisions under the existing Planning Scheme, also making reference to the proposed scheme.

85. There are no existing or proposed Planning Scheme provisions that would directly operate so as to prevent this subdivision. The only relevant lot size having some form of statutory effect is 300 sq.m., which is the size at which a lot carries with it a right to a dwelling without a permit in this zone. Below that size, a house would require a permit, but neither lot nor house would be prohibited.

86. Mr Easton also referred to the residential development policy in Clause 21 of the Regional Section of the Planning Scheme. A density of one house per 2,000 sq.m. lies outside the scope of Clause 21-1. This reference was by way of illustration of what this policy would allow if it applied, rather than being directly relevant.

87. The relevant metropolitan policy is in Clause 14-2, "Housing and urban consolidation". Relevant provisions are:

· A range of housing opportunities to meet the diverse housing needs of the community are provided and that principles of choice and affordability are promoted.

· Residential standards ensure adequate daylight, open space and privacy.

· Subdivision achieves an efficient and cost effective use of land.

· A range of lot sizes_, multi-dwelling development and dual occupancy housing in all appropriate residential areas are developed as key components of urban consolidation._

· Opportunities are provided for increased dwelling densities to reduce population losses in established areas. [underlining added]

87. Mr Montebello submitted on behalf of the Council that the subject land was one of the largest lots (if not the largest) in Fairview Avenue, and one of the 3 or 4 remaining large lots in the locality. He distinguished the subdivision of which the subject land was part from the form of subdivision around it in a submission which may be summarised as follows:

· The lots were significantly larger than the usual suburban block, and that gave the subdivision a different "feel".

· The subdivision had a curvilinear pattern compared to the fairly standard linear grid of surrounding land.

· Due to the curvilinear nature of the grid, some lots were irregularly shaped. The irregular lots have been allowed to stay large.

· Significantly more vegetation was retained than is usually the case in a standard residential subdivision, due to the size of the lots.

· In Fairview Avenue, houses are generally set well back from the frontage, and the setback areas are well landscaped.

· These factors lead to a "country in the city" feel.

88. Mr Montebello criticised the first version of building envelopes offered by the applicants on the ground that they were very big, and allowed setbacks of only 5 metres at the northern boundary, and about 7 metres at the south end of lot 2.

89. He further submitted that the loss of one of the largest lots in the area would be a significant change in its character. As well as leading to the loss of one of the largest houses, there would be a loss of vegetation, and the construction of two houses (with their outbuildings, fencing of the new boundary, and other associated works) which would lead to a significantly different built form. The type of the newer houses which are being built in the area is bold and designed for display, rather than designed to nestle into a landscaped setting.

90. The style and size of houses, and even the minimum setback of houses from the street, is a matter for control over development, rather than subdivisional control. There is nothing to stop a purchaser of the subject land doing exactly what the owner of no. 3 Fairview Avenue has done in terms of constructing the big house in a dominant position, with the gateway displaying and drawing the eye to the big house, rather than having the entrance area screened by foliage. The aerial photos appear to indicate that this new house is located rather close to its side boundaries, illustrating that setbacks cannot be guaranteed by retaining the single dwelling limitation either.

91. Nor does the Council as planning authority propose to give recognition and protection in the new Planning Scheme to the character of development in this area other than the limited protection to be afforded to vegetation.

92. The example quoted by Mr Montebello underlines the correctness of Mr Easton's opinion that the area is changing because newer owners wish to have a different style of house. This is not a matter that is controlled through subdivision or the covenant: so long as the house is a single house on the lot, even if the covenant applies to it, the style is not governed by the covenant.

93. The character of the area may have been influenced to some extent by the covenant, in addition to the size and shape of the lots, and the street pattern. But I note that there are 18 benefiting titles in an area of about 50 lots. In terms of the influence of the covenant, it is the location of the burdened lots that must be most important. The burdened lots are all located in a group around the corner of Waverley Road and Pleasant View Crescent, with the subject land between them, being the only burdened lot fronting Fairview Avenue. The extent to which the covenant, as opposed to the wishes of people who chose to buy into the area to maximise their views, governed the styles of housing built in earlier times, is in my view dubious. In any event, I consider that this is a neutral factor in relation to the subdivision, as the lot sizes would conform to the predominant density of the lots subject to the covenant.

94. I am not convinced by the "city in the country" argument. While there is substantial bush surviving on the properties at the lower end of the hill in Fairview Avenue, this is not universal. At the higher end (in the vicinity of the subject land), where the views towards the hills would be better, big houses on cleared blocks with a fringe of boundary planting would seem to be at least as common.

95. I am not concerned at the areas of the two proposed lots, because they are similar to the area of the surrounding blocks at about 2,000 sq.m. The matter that did cause me some concern about the proposed subdivision is the shape of the lots, which would have a narrow frontage and relatively long, narrow blocks, in comparison to the other lots in the area.

96. The creation of two lots with relatively narrow frontages could possibly tend to lead to taller houses which have their broadest dimension placed down the lot, as with most conventional, rectangular subdivisions, rather than with the broadest dimension lying across lots, using the contours of the hills, as it common in this area. However, the features of the area recognised by the Character Study favour diversity of style, rather than uniformity, so that this is not a negative factor.

97. I also considered whether this would have any relevant effect on the benefiting owners under the covenant. I concluded that the sight of different styles of housing, perhaps seeking to maximise views by "building high" as Mr Bidese did, rather than hugging the contours, could not be treated as a detriment to a benefiting owner, so long as the house in question remained a single dwelling on a lot which was not "out of character" with the other lots which are affected by the covenant. Style and size of houses are not subjects controlled by the covenant, any more than setback from frontage or side boundaries is.

98. In any event, I do not consider it likely that any of the objectors other than Mr Knowles would have a direct view into the subject land from their own properties, except perhaps a view of the taller trees; and the view from the street of the southern lot will be limited by the fact that most of the area of that lot lies to the south of the boundary between the subject land and 3 Fairview Avenue, and will be screened by the fencing and vegetation around that boundary.

99. The argument raised by Mr Montebello and some of the objectors about reducing the supply of large lots when there are plenty of smaller lots around to purchase instead if you want a smaller lot goes to the issue of "range of lot sizes", against which must be balanced "provision of opportunities for increased dwelling densities" in the Regional policy. I came to the conclusion that in the circumstances of this proposal, that is not a consideration that should prevent subdivision into the two lots proposed. Anyone who wanted to keep the subject land intact could have bought it for that purpose. The applicants took a big risk in purchasing subject to a covenant, whereas someone who wanted to keep the lot intact would not have had the same risk, and could have built a house similar to the new house at no.3 without the need for any planning permits. I also note that several other vacant lots are for sale in the area, and the lot opposite the Kuns' house in Waverley Road has been vacant for some time, as it is vacant in the aerial photographs, and also when I recently inspected the area. It therefore appears to me that there is sufficient choice among the larger lots.

100. The creation of two new lots each around 2,000 sq.m. conforms to the density of lots in this limited area, rather than increasing the range of available lot sizes, but otherwise generally conforms to the policy. Under Clause 16-2, the subdivision meets all relevant criteria with ease; the only issues which I will discuss as being possibly arguable are the effect on amenity of the neighbourhood, and the subdivision pattern having regard to physical characteristics of the land including vegetation.

101. Mr Easton rightly pointed out in his evidence that neither the covenant nor the existing zoning protect the existing vegetation in the area which is so valued by the objectors. He gave it as his opinion that the existing trees were not threatened by the creation of the proposed new subdivisional lot boundary.

102. Mr Jones pointed not only to the present lack of vegetation controls restricting the clearing of the subject land, but also to what he submitted was the limited nature of the proposed Vegetation Protection Overlay, which forms part of the proposed new VPP Planning Scheme. The text of the Overlay was tendered by Mr Montebello. The actual permit requirement is contained in Item 1.2 in Schedule 1 to the Clause 42.02. The relevant parts of it are that a permit is required -

· to remove a tree within 6 metres of the frontage; and

· to remove a tree that has a trunk circumference greater than 500 mm when measured at a height of 1200 mm height above ground; and

· to remove a tree greater than 7.5 metres in height.

103. The information proposed to accompany an application under this clause would include a written statement of "how the removal of the tree(s) is essential for the proposed development to proceed, including assessment of design solutions retaining the tree(s)."

104. Although once beyond the 6 metres frontage belt, only fairly substantial trees would be protected by this restriction (if and when it comes into operation over the subject land), I do not consider it such a weak provision as the applicants would make out. In the case of the trees visible at the subject land, by photos or from the surrounding streets, there are a number of tall trees that would seem to attract the permit requirement. However, that Overlay does not exist in the present Planning Scheme. I can only consider it as a "seriously entertained planning proposal", and as reflecting a current policy of the Council recognising the significance and contribution of vegetation to the urban character of the residential areas of the municipality (as reflected in the opening to the "statement of vegetation significance" in Schedule 1 to the Overlay, Item 1.1). The statement ends:

"Monash City Council is committed to preserving, continuing and extending the Garden City Character and all its elements throughout the Municipality. To ensure that development is in keeping with and contributed to the Garden City Strategy as set out in the Monash Municipal Strategic Statement, Council is following a policy of encouraging the retention and renewal of tree canopy on private and public property."

105. Retention of vegetation by way of permit conditions is proposed by the applicants. This is a matter I consider important, having regard to the long and relatively narrow shape of the two proposed lots. If the vegetation at the front of the site was cleared, and a new building set forward into the narrow "neck" to the eastern end of the subject land, the impact on the character of Fairview Avenue could be quite marked, because it would reinforce the impact of the large impressive gateway feature at the adjoining property, no.3, and the highly visible two-storey house located in clear view of the street at that site. The building envelope proposal would ensure that this cannot occur. Equally, a condition governing the access arrangements and landscaping would protect the vulnerable point of the access from Fairview Avenue into the subject land.

106. It is too onerous to judge an impact in this context by the cumulative impact that the proposed access arrangements would make when taken together with an existing development next door. The clearing and construction of the very large new house at no. 3 is of course entirely consistent with the covenant, although the nature of this form of development appears to be disliked and opposed by some of the objectors. The effect that even one such development can have on the streetscape has been judged by the Council as an appropriate subject for management under an Overlay, which will be specific to the issue of vegetation along the frontage, rather than leaving this to the whim of the individual owner, as the covenant does.

107. Mr Kennedy referred to increases in traffic flow in both the Crescent and Fairview Avenue. They are presently low volume. I do not regard the possible increase in traffic from an extra house to be an unacceptable detriment, or to be likely to cause a detriment, so as to justify refusing a permit either for the subdivision or the covenant variation. There is no evidence to support the allegation. In the context of the subdivision application, the addition of the maximum traffic one could expect to be generated by one additional house on lots of this size would in my view be readily accommodated. The provision of adequate carparking on the subject land would be well within the capacity of each new lot; and the building envelopes would control where garages or carports could be located.

108. Mr Montebello did not seek to transfer characteristics allegedly based on the covenant into grounds of opposition to a subdivision. The passages to which he referred from the Monash Character Study made no reference to covenants. As one would expect where the only proposed Overlay control for the area relates to vegetation, the unifying element for the area as described in the "Desired future character statement" is the canopy of native trees in both the private and public domain. Architecture should, it is said, be designed to sympathetically integrate with any existing native trees and shrubs on, or adjacent to, the development.

109. The passage relevant to new subdivision in the "Desired future character statement" can hardly be meant to refer to the creation of one new lot at the density relevant here. However, I will quote it for completeness:

"New subdivisions should retain the curvilinear subdivision pattern or be sympathetically integrated with it. They should be designed to relate to the natural undulations in topography and make the most of the potential for views to the Dandenong Creek Valley. The ´soft' quality of the streets that is in part derived from the nature strips should be maintained by ensuring that there is only one single crossover per lot frontage."

110. I do not see any reason in this statement to refuse a permit for this subdivision. Thus, even applying the Study on which the sole future proposed Planning Scheme Overlay applies, as being a statement relevant to the amenity of the area, there is no reason to refuse this subdivision. Suitable conditions concerning the access point and landscaping will overcome any concerns about the impact of subdivision (as opposed to development) on the streetscape.

111. Mr Jones pointed out that the subject land comprised nearly 4,000 sq.m., or about an acre. To divide it into two nearly equal lots would not be out of keeping with the half-acre lot sizes to which the objectors referred.

112. Mr Easton referred in his evidence to a number of subdivisions, including those previously referred to by Mr Kennedy. He tendered a copy of PS 414231, now registered at the Land Titles Office, creating 11 lots around "Golden View Court" off the eastern side of Lum Road, some 320 metres south of the intersection with Waverley Road. These lots vary in size from 601 to 691 sq.m. They are subject to restrictions created on the titles as regards setbacks, fencing and access from Lum Road.

113. This subdivision is "off the map" as far as the plan of benefiting properties is concerned, although close to the intersection of Lum Road and Pleasant View Crescent. The evidence did not reveal whether it was part of the area partially affected by the covenant relevant in the present case, or whether it previously had a covenant at all.

114. Plan of subdivision PS 308052Q, which resubdivided Lots 35 and 36 on LP 17038, was also produced, together with the transfer of Lot 2. This created two lots of 1,860 and 2,219 sq.m. respectively. These lots appeared from the title documents to continue to be subject to the covenant, although not shown on the plan tendered by Mr Montebello. Their areas are close to the lot areas produced by the proposed subdivision on the subject land, but they represent a boundary realignment rather than a change in the pattern of the subdivision or a variation of the covenant, with a fencing covenant as between the two lots.

115. Mr Easton's further searches had revealed a 2-lot plan affecting Lot 18 (37-47 Lum Road, to which Mr Kennedy also referred) which created two lots one of which was 1,893 sq.m. in area, with the other 6, 226 sq.m.

116. At the end of the first hearing day I made some comments about the submissions made by the objectors as to the effect of this proposed subdivision as a precedent for the destruction of the character of the area because it would support applications for much smaller allotments, quoting up to 7, 8 or 11 lots around the 400 square metre mark. These comments were that in my view, it would be impossible for this subdivision into two lots of sizes near to the areas of the objectors' own lots to be used as a precedent for subdivision into the much smaller lots sizes to which the objectors referred. Although there will always be a range of opinion in the Tribunal, I cannot see a 2-lot subdivision creating lots of approximately 2,000 sq.m. each as being a precedent for the creation of 7 or more lots of 400 sq.m. In order to be accepted as a precedent, the "precedent" and the subject proposed have to be capable of being shown to be comparable. The more comparable the facts and circumstances, the more weight the precedent has. The subjects are too different for the precedent argument to have any weight.

117. The precedent for lots of around 600 sq.m. is already established by the registration of the subdivision on the east side of Lum Road, where development is already under way. This subdivision is within the area "E1A" in the Character Study (volume 2, p.123), along with the subject land. The objectors presumably wished to show that it was comparable, to support their precedent argument. The frontages of some of the lots set out around that bowl of "Golden View Court" are of comparable width to the proposed frontages here. But a 2-lot subdivision into lots of about 2,000 sq.m is simply not directly comparable to that subdivision, which is more along the lines of the court developments off View Mount Road and Mackintosh Road than the development on the curvilinear streets.

118. I was told by the objectors that the half-acre lots are considered a valuable characteristic of the area. That is not supported by the Character Study, which refers to the characteristic of curvilinear streets with frontages of 30 metres, low density, and both large and varied setbacks, but not to any particular area as a contributory element. Even so, this subdivision will produce two lots each approximating the desired half-acre area. I do not consider that people who express their appreciation and high regard for half-acre lots can also logically argue that lots of about the same size would degrade the area. Mr Knowles in particular is vulnerable on this issue, as his own property is nearly 200 sq.m. smaller than the smaller of the proposed lots. It seems to me that fear of change has led those objectors who made strong submissions to that effect to go too far.

119. As regards the apprehension that once subdivided, each lot would become a site for three or more homes, if somebody who had bought either of the two lots proposed here were to re-subdivide it, it may well be possible to apply for such a development (as in the case of the proposed subdivisions mentioned), but there would have to be a process for consideration and determination of the application. A permit is required for this proposed two-lot subdivision, and no-one referred me to any provision that would give a firm ground for supposing that the requirement in Clause 130-2 for the Residential C zone would not apply to future subdivision. Nor did anyone submit that this situation would change under the proposed new VPP format Planning Scheme. No further subdivisional rights would automatically follow without further permits being required.

120. Fear of uncontrolled development may be related to observation that very large homes, very close to property boundaries, can be built in this area without a need for a planning permit. If lot sizes go below 300 sq.m., the Good Design Guide applies; but above that site area, only the "Victorian Code for Residential Development, Subdivision and Single Dwellings, published by the Department of Planning and Housing in April 1992" (known as "VicCode 1") has to be met. This is now generally regarded as a lesser standard of amenity protection for neighbouring owners. It is the type of development that an owner could carry out "as of right" under the Vic Code 1 standards that Mr Jones has described by way of comparison in his submissions about possible detriment to benefiting owners. However, if two large houses were to be built on one large lot without subdivision, the Good Design Guide would apply, and a permit for the development would be needed; while if subdivision were sought, a permit would be required for that.

121. Because of the unfounded apprehensions expressed as to where the proposed subdivision may lead, it is worth repeating that the owner of the subject land, like the owners of nos 3 and 5 Fairview Avenue, is free under the existing planning controls to demolish an existing house and build a much bigger house, much closer to the boundaries and to the frontage, than the old houses. The covenant does not affect that position.

122. Mr Jones also submitted that the house built at no. 3, which was the sort of house intended by his clients on the lot they intended to keep, was designed by an architect and had won numerous awards. He pointed out that this very large form of dwelling is exactly the form of housing that the covenant protects. These is no upper limit placed on size by the covenant (although there is a minimum value). Over time, given land values in the area, he submits that this form of development is likely to take over. The proposed new house for no.5 was of 50 squares, more than 20 metres wide, at least part double storey, with extensive garaging -of similar scale to the house at no.3.

123. The style of the house at no.3 has been criticised by the some parties. However, the façade is well articulated, and the house very substantially set back. I see no reason why it should not be regarded as a modern version of the substantial home on the spacious block that is clearly a primary purpose of the covenant. The designation of a minimum cost for the construction of the house to be constructed, and a specification of materials, both indicate that a certain quality of home, as well as a spacious layout, are intended to be achieved by the covenant. Varied building style and size are both Contributory Elements set out at p. 122 of the Character Study.*

124. The hearing did not finish on 23 December 1998. At the end of that day, Mr Montebello had completed the Council's case, the four objectors had made their submissions, and the applicants' planning consultant, Mr Easton, had given his evidence in chief and was under cross-examination. The objectors had not yet had their opportunity to question him. Landscape plans tendered at the hearing had been photocopied and circulated.

125. The hearing resumed briefly on 15 April 1999 (with Mr J Carey of Maddock Lonie & Chisholm, Lawyers, appearing on behalf of the Council on that day only, and Mr Watterson as the only objector who appeared). Prior to this hearing, Mr Easton circulated new plans being draft building envelope plans incorporating heights, and the location of possible driveways, on behalf of the applicants under cover of a letter dated 13 April 1999. These plans were submitted by way of a response to the Council's draft conditions, which had been circulated at the Tribunal's direction. I expressed some difficulty with a building envelope plan that only dealt in two dimensions, when the subject land slopes quite steeply, and there were objections regarding building height and bulk, and the impact on views and outlooks.

126. The further plans, drawn by Habitat and dated December 1998 (i.e. without a revision date) which were filed with the letter of 13 April 1999 showed the proposed two lots with setbacks from building envelopes to the boundaries of the title, and also the existing vegetation that was to be retained. The main feature was that the plns contained further details which confined the two building envelopes not only in two dimensions, but also as regards building height. They also showed the detail of the proposed driveway entrance, and the precise location of the two new access drives that commence past the 10 metre setback occupied by the driveway entrance feature. A landscape plan incorporating the retained vegetation was also envisaged.

127. These plans were considerably more elaborate that the previous plans in the control which was proposed over the height, bulk and location of any proposed buildings on the proposed new lots, and also with respect to landscaping, and the treatment of the entrance.

128. Lot 1 is the northern lot. Its envelope was located some 50 metres from the frontage. This extreme setback means that the front wall of any building would be to the west of Mr Knowles' tennis court, which is shown on the plan for reference, and also of the clump of existing vegetation on the subject land to which Mr Knowles has made reference in his submission. The northern element of the building envelope had a setback to the northern boundary of one metre, with the envelope between 1 and 3 metres capped at a maximum height of 3.6 metres above natural ground level, which was also shown by contours on the plan. Between 3 and 5 metres, the height was capped at 6.9 metres. Beyond that, the maximum wall height was 8 metres. The roof pitch was limited to a maximum of 30 degrees.

129. The southern and western boundaries of the envelope for Lot 2 had a minimum 5 metres setback to a potential maximum wall height of 8 metres. In shifting the building envelope for Lot 1 as far west as possible, the applicants had maximised the building bulk that would potentially be located to the west of the site, nearer to the houses in Pleasant View Crescent.

130. I will not described the details of this plan any further, as it was superseded before the next hearing. I will add a comment, however, that the building envelope may have been partly intended to illustrate the sort of site coverage and wall height and setback that could be applied "as of right" for any house on the subject land.

131. As is the case with all the versions of the proposed building envelopes, although the building envelopes represent the outer limits of building location and height, and any building could be located up to the limit in any part of the envelope, it is very unlikely that house walls would be constructed across the entire western end of the two envelopes, or otherwise along an entire envelope boundary. The envelopes have to accommodate any outbuildings, as well as "room for a pool".

132. This hearing then became in effect a directions hearing to accommodate the applicants' intention to produce further new plans and circulate them to the parties. It was adjourned to 10 May 1999.

133. The final plans modifying the layout of the subdivision were received from Easton Consulting by letter dated 23 April 1999. These comprised PS 418760W prepared by Licensed Surveyor John Edwin Chivers ref.6501 version 03 dated 15/12/98 (3 sheets), the main feature of which was that the building envelopes were modified. In my opinion, the new building envelope plan was a much improved plan.

134. Accompanying the new plan was a letter explaining that the applicants had taken the advice of an arborist, Mr N Rivett of NJR & Associates. The other parties were requested to give notice if they wished to cross-examine the arborist. None did.

135. Mr Easton also enclosed a revised wording for the proposed variation to the covenant, intended to confirm that no lot may be reduced below 1,800 sq.m.

136. The carriageway easement was redesigned to correspond with the existing constructed driveway, which meant that the whole of the shared part of the driveway was located in the easement shown on proposed Lot 2. The new driveway branching off into Lot 1 curved around a mature Eucalypt which was to be retained. An updated Habitat "existing vegetation plan" showing the redesigned entrance conforming to the new easement dimensions was also produced. A note on that plan states "proposed feature entrance to be landscaped as per separate landscape plan", being a detail of the entrance area.

137. The new building envelope for Lot 1 was set back 6 metres from the northern boundary. Mr Easton, under cross-examination by Mr Knowles, stated that the distance between the edge of the envelope and Knowles' property boundary was some 18-19 metres. Mr Knowles' property is about 23 metres wide.

138. The north-western boundary of the envelope is also set back 6 metres, and from the bend returning to the south-east, the setback to the envelopes for both Lots 1 and 2 is 5 metres. There is no division in the envelope between the two lots, as internal amenity will be subject to the ordinary standards applicable under VicCode 1, and has not been a matter of concern to the objector parties.

139. The southern boundary of the envelope for Lot 2 is set back 5 metres from the property boundary shared with 3 Fairview Avenue,.

140. I observe that the greatest part of the bulk of the house envelope for lot 2, which has its envelope located nearer to the frontage than Lot 1, is located south of the southern corner of the frontage. That means that almost all of the envelope would be obscured by fencing, by part of 3 Fairview Avenue, and by the perimeter vegetation on both no. 3 and the subject land. The setback to the part that is located in the area north of the boundary is set back in excess of 30 metres from the frontage. It could be expected that most of this envelope would be well obscured from view from the Avenue.

141. The building envelope for Lot 1 is set back over 55 metres from the frontage.

142. The building envelopes included AHD levels. Mr Jones, in introducing the new plan, referred to proposed restrictions noted on the plan: the upper internal ceiling height of any building was to be limited to a maximum of 9 metres above natural ground level, the roof slope was to be reduced to a maximum of 25 degrees, and there was to be no more than one dwelling on each lot. The internal ceiling height rather than wall height and the reference to roof slope were added to deal with the effect of the fall of the land on building height, and somewhat reduce the height of a roof.

143. Mr Easton explained that the fall of the land was such that the slope allowed a drop of 1.5 metres in the width of a room. Maximum height had been calculated to allow two storeys and an undercroft garage of 2.4 metres height, but a third storey would not be possible without substantial cutting.

144. All the objectors were given the opportunity to make a final submission taking into account the revised plans after Mr Easton's evidence was completed. They also had the opportunity to question Mr Easton on the last day in the ordinary course of cross-examination, which was incomplete at the end of the first day. Mr Montebello was also given the opportunity to make a further submission, and to re-open his cross-examination of Mr Easton on the revised plans.

145. The applicants had obviously made an effort to overcome any likelihood of detriment which had been alleged by any benefiting owner. Whether they succeeded on the appropriate test, and whether that was enough for them to obtain a permit, are the issues that now remain to be addressed.

146. There is no dispute as to the applicability of Section 60(5) to application for variation of the covenant. This is a covenant that has been in existence since 1949.

147. The relevant part of Section 60(5) of the Act states:-

(5) 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........ 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."

148. Mr Montebello submitted that the covenant was not "dead wood", but continues to serve its purpose. This was not contested; and I accept that this is not a "dead wood" covenant, but has been observed as regards the single house per lot element, and continues to be valued by at least some of the people who have the benefit of it.

149. The impact of the variation on the continuing covenant, varied to allow an additional house on the conditions proposed, would be that each new lot created could have a single house on it, but would remain subject to the modified single dwelling covenant on that lot, and would also be further regulated by building envelope and vegetation requirements.

150. There are two questions to be dealt with. The first concerns all owners benefited by the covenant, and requires that before a permit can be issued, the responsible authority must be satisfied that no such person will be likely to suffer any detriment of any kind from the variation. The person in question need not be an objector: Grisby & Sansom v City of Greater Geelong (1997) 21 AATR 11 at 28.

151. I do not consider that any benefiting owner who is not an objector represented at this hearing is likely to suffer a detriment from the proposed variation. It is relatively easy to come to that conclusion with respect to the benefiting owners who made no objection to this application. All were notified of the application, and if they did not consider that they would suffer any detriment justifying an objection of their part, I see no reason to pursue the matter. My conclusions on the evidence and from my own inspection of the area do not reveal anything that I regard as anomalous or which causes me to feel obliged to investigate the position of any such benefiting owner any further.

152. The second aspect of Section 60(5) of the Act is the one on which attention must be focused in this case. There are people having the benefit of the covenant who have objected. The applicant therefore sought to prove that no such person would be likely to suffer any detriment of any kind.

153. Under Section 51(1) of the Victorian Civil and Administrative Tribunal Act, in exercising its review jurisdiction in respect of a decision, this Tribunal has all the functions of the decision maker, amongst other functions. If the Tribunal is of the view that an owner of land benefited by the covenant who objected to the variation would be likely to suffer any detriment of any kind within the terms of Section 60(5) as a consequence of the variation of the covenant, and if it is satisfied that the objection was neither vexatious nor made in bad faith, the Tribunal could not grant a permit which allowed the variation, any more than the responsible authority could.

154. Although likelihood of any detriment of any kind, including any "perceived detriment" is enough to bar a permit, it is for the Tribunal to determine whether any covenant beneficiary is unlikely to suffer any detriment; and there has to be an objective basis on which the Tribunal can be satisfied that there is unlikely to be any detriment: Scuderi v City of Hume, Charlie Carrabott and Others, reported as Carrabott v Hume City Council (1998) 22 AATR 261 at 279, where the Tribunal's findings are summarised. This case considered and dealt with the Tribunal's previous decisions concerning the present form of Section 60(5), and I do not find it necessary to make further reference to any of the cases referred to in it on that point.

155. The objective nature of the test is found in Carrabott's case at p.279, in the Tribunal's finding that -

"There must be a real chance or possibility that a detriment will result, mere assertion or belief will be insufficient."

156. The test for perceived detriment is amplified further at p.279, paragraph 56 of the decision:

"In our view, the expression ´will be unlikely to suffer any detriment' in s 60(5) of the Planning and Environment Act 1987 does not necessitate a finding that detriment will occur as a probability, rather it is sufficient that there be a possibility, which is neither fanciful nor remote that a detriment may occur."

157. In considering the proposal in the present case, the Tribunal must consider "whether it is satisfied to the requisite standard that the variation of the restrictive covenant would not, as a likelihood, cause any detriment" (see Carrabott para 58).

158. Unlike the Carrabott case, the issue in this instance is not one of "the incursion of medium density development into an area of single dwelling houses on `liberal allotments'". The proposed subdivision and two houses would still be at a low density. The perceived benefit of residing in a low density area which was referred to as being widespread in the community in Grisby & Sansom v City of Greater Geelong (1997) 21 AATR 11 at 20 would not be lost by returning the dwelling density of the subject land to about 1:2,000. The objectors would not be deprived of the environment of single dwellings on liberal sites. The variation would certainly not create a precedent for allowing multi-dwellings under the Good Design Guide on a covenanted lot in this subdivision, and never would have done so, even without the series of amendments suggested by the applicants.

159. There is an element of confusion in the submissions of the objectors between the objections which are properly related to the subdivision application, and which are relevant to the covenant. They have merely stated their objections, and left it to others to work out whether a particular objection is related to subdivision, the covenant or both. An example of how I have dealt with this appears from the submission made by two objectors that there are plenty of smaller lots, but that lots of the size of the subject land are scarce. I regard this argument as relevant to the application for subdivision, rather than to the variation of the covenant, because the covenant does not control the size of lots.

160. However, the objectors also submitted that the covenant was imposed to protect a certain density. I consider that this was one of the purposes of the covenant. If the permit is granted, it is highly probable that two houses will be located on the subject land to replace the one sprawling house that now occupies it. But it seems to me that the approval of two houses at a dwelling density that is the common density in the area, and which the objectors say the covenant is intended to protect, is not a variation that could give rise to a detriment on the ground of increased density, even if one additional house results.

161. The character of the area would remain generally one of single houses on lots of about 2,000 sq.m. No new dwelling density element is introduced. The frontage is already below the predominant 30 metres, and would be unchanged in appearance.

162. Mr Montebello submitted that there were a number of grounds on which there would be detriment of some sort to a benefiting owner, and which therefore prevent the grant of a permit. Briefly summarised, these are:

· Significant loss of vegetation from within the body of the lot, diminishing the aesthetic outlook.

· Any building on the land would be substantially closer to the common boundaries with lots enjoying the benefit of the covenant.

· Loss of vegetation due to construction of a second driveway.

· Loss of vegetation due to construction of a dividing fence on the new lot boundary.

· It is likely that two substantial dwellings would be visible instead of one dwelling set well back. The sight of two dwellings would be a detriment to the character of the area enjoyed by those who have the benefit of the covenant, even if they only drive past occasionally.

163. Mr Jones' responses to these points, following circulation of the last of the revised plans, was that under Section 60(5)(a), the basis of objection must by implication be an objectively supportable detriment. He submitted that:

· The building envelopes were carefully designed so that there was no "objective detriment" to any benefiting owner.

· The sight of a building across a tennis court (this is a reference to Mr Knowles' objection) is not automatically a detriment. The suggested setbacks for the building envelopes ensure there is no objective detriment. The view from Mr Knowles' property is likely to change in any event with the construction of any new house on the subject land.

· It is impossible to find a detriment in the precedent flowing from subdivision with a lot size minimum of 1,800 sq.m.

· The alternatives available to the owner of the subject land without variation of the covenant should be compared for the purpose of considering detriment.

· It is possible to build in a condition that there be no further dwellings on each lot. A Section 173 agreement was also suggested as a way of overcoming the limitations on enforceability of a restriction on title, whereby neighbours could not take direct enforcement action.

· The redesign of the entrance will be a considerable improvement.

164. Mr Easton's evidence with respect to the effect or otherwise of the variation of the covenant, which I accept on these points, was (in summary):

· As a control over amenity, the covenant is limited in a number of ways. It does not restrict the size, style or colour of dwellings, overlooking, setbacks from lot boundaries, the number of cars that may be accommodated on site, the positioning of garages, the creation of driveway crossovers, or retention of trees.

· The two benefiting owners to the north of the subject land, of whom Mr Knowles is one, will each still have a common boundary with only one house site, and would be further protected by building envelope requirements governing setback of houses and other buildings, imposing a standard which compares favourably with building setbacks already in existence in the covenanted area and under the Planning Scheme.

· The existing dwelling at the subject land is already in breach of part of the covenant, as it has a galvanised iron or tin roof, which is forbidden. This house would be replaced by one of similar or greater quality than the houses already existing on benefited lots.

165. With respect to the other benefiting lots, Mr Easton expressed the opinion that they are so remote from the subject land that no detriment to these lots is practical. In the case of 11 and 13 Fairview Avenue, I agree that this is correct with respect to the final version of the applicants' proposal.

166. Mr Jones submitted that only detriments which could be found to be referable to the jurisdiction of the Tribunal as contained in Section 4 of the Act (the objectives of planning in Victoria) should be considered under Section 60(5). The detriment must flow from something by which the Tribunal's jurisdiction arises. Mr Jones gave as an example the detriment alleged by Mr Montebello to arise from the building of a new boundary fence on the subdivisional boundary. He argued that there was no control over that at all under the Planning Scheme, so that it should be entirely disregarded for all purposes.

167. I do not agree that "any detriment" has to be a "planning detriment". The subject matter of Section 60(5) is restrictive covenants, not Planning Schemes. It is quite clear by now (since Carrabott's case) that the sort of balancing of the various elements of a proposal that is carried out in the assessment done for planning permits for use or development is inappropriate; and this is another aspect in which the special subject matter attracts special rules. A provision in a Planning Scheme for variation or removal of a covenant must be authorised by Section 6(2)(g) of the Act, which specifically states that a planning scheme may regulate or provide for variation or removal of a "restriction" which by definition includes a restrictive covenant. This is a single-purpose power, and in my view its main link to "planning" matters is to be found in the objective of providing for a single authority to issue permits for land use, development and related matters (Section 4(2)(f) of the Act), rather than in the sharing of the criteria by which applications must be determined. Compliance with the Act is achieved if the Tribunal takes a relevant Planning Scheme into account, and otherwise has regard to those of the criteria set out in Section 84B of the Act which are mandatory or relevant to the circumstances, without being bound to consider exclusively planning matters in the consideration of detriment.

168. I do not think there is any ground for a conclusion that when the legislature amended this Act to say "any detriment of any kind (including any perceived detriment)", it intended that the kind of detriment should be read down in that way.

169. In any event, there have been plenty of instances where a fence has been the subject of a requirement or condition in a permit although no permit is required for it as an independent entity. Fencing is a form of screening that is often considered under the Good Design Guide, and acoustic fencing is a commonplace requirement where the use permitted may be noisy. Among other things, fences can prevent detriments to other owners occurring by stopping the detriment escaping from the subject land. Fences can take a part in overall consideration of the effect of a proposal, whether they need a permit as structures or not.

Change to the character of the area: comparison with as of right development

170. Mr Jones invited me to consider the concept of detriment in the context of what could be allowed as of right in the relevant Residential Zone under the existing Planning Scheme or proposed VPP model Monash Planning Scheme, having regard to the fact that the protection of the covenant only precludes more than onehouse. The tree canopy need not remain under the covenant, and the location and size of the house may change. By contrast, he submitted that the proposed building envelopes would ensure that the two dwellings were so well set back from the frontage that any perception from Fairview Avenue itself is likely to be far less than the impact of the existing house at 3 Fairview Avenue (which conforms to the covenant, whether or not it is obliged to do so).

171. I do not think that I can properly take the argument about what is allowed as of right as a point of comparison as far as Mr Jones wants it to go, despite the basis of comparison used in Jatka v Boroondara (Application no.1998/6087, decided by Ms Moles on 16 November 1998, at p.11), although it has relevance. The comparison in that case was between two uses both of which were allowed by the covenant, not between a use allowed by the covenant and what could be done as of right on the property under the Planning Scheme.

172. Whoever bought the subject land may well have chosen an imposing mansion, built high to get the long views (as Mr Bidese stated that he did when he bought his property). Arguments about style, setback, vegetation and the like which are based on a single dwelling covenant have the weakness that the owners can adopt any size, style and setback they choose, and bulldoze and level the garden for a tennis court (there are already about 4 in the immediate area), whenever they choose, under this form of covenant. The degree of probability or possibility of their doing so while the covenant limits the number of houses on a lot at present, however, is relatively limited, compared to the increased likelihood of substantial building sites being cleared which arises from a variation to permit further development. Similarly, if the proposed variation occurred, it is more likely that another house would be built closer to at least two of the existing boundaries than the present house, or than a new and larger house would be if the existing house were merely to be replaced by another single dwelling.

173. It is true that the covenant is limited in what it controls, and that tree clearance and construction of a very substantial building close to the north and west boundaries is possible under it. However, I do not think that a hypothetical form of development which, though conforming to the covenant, does all the things mentioned by Mr Jones is the true comparison by which to assess whether variation of the covenant would give rise to a detriment. There are many lots in this area that are not subject to the burden of the covenant, and few of them have houses built close to side boundaries, or have substantial stretches of two-storey construction close to neighbouring boundaries. Some have cleared their back yards for tennis courts, swimming pools and the like, or simply for an uninterrupted view. But there are still many houses in the area, whether or not a covenant is involved, where the house is set back from its neighbours amid a large garden. This does not come from the covenant if the covenant does not apply to the lots; it is a matter of people conforming to a desired character of the area.

174. Certain inferences about how people intend to live on their sites may arise from the limitation of the use of a large lot to one dwelling, even though setbacks, bulk, vegetation and the like are not specifically protected by the restrictive covenant. Common patterns as to site layout and retention of vegetation and so on tend to emerge when everyone is building one house on a large lot. But those inferences and patterns are not necessarily acted out in every case. It seems to me that in this area, a clear tendency in the more elevated part of the subdivision is to build almost right across the lot to maximise the views to the east, the significance of which to the area is recognised in the Character Study. This has sometimes resulted in the side setbacks being less generous than may be expected in an area that does not have such attractive views. Very large buildings highly visible to the neighbourhood, rather than houses hidden amongst trees, are also to be found in this area; while at least one owner has placed his cyclone wire tennis court walls at or close to his property boundary. The covenant does not stop this occurring as a matter of law; but it would be a very unlucky neighbour who had any long stretch of a single two storey building close to the property boundary for more than part of one boundary on a lot of about half an acre. It is not prevented; but it has not happened very often.

175. I therefore consider that it is correct that the proposed variation would be likely to result in more building closer to more of the property boundaries than is likely to occur without a variation. But does any relevant owner suffer a detriment as a result?

176. The only owner on the northern boundary who has objected is Mr Knowles. One of Mr Knowles' major concerns is that the vegetation presently located on the subject land might be reduced or eliminated, so that he would lose the benefit of the view from his own property into the subject land, which is bushy and peaceful, with the existing house set well back from his property. His own house is set to the front of its lot. It is apparent that the reason the view to vegetation on the subject land holds such value to Mr Knowles is that, although he spoke of the need for peace in the back garden because of the noise of busy Waverley Road, most of his own back yard is taken up by a north-south tennis court. One of the photographs tendered by Mr Montebello (taken by Mr Kennedy) shows that Mr Knowles does not have a solid back fence, but relies on the cyclone wire tennis court fence at the rear of the court, so that in the parts not totally screened by creepers, he can look directly through into the garden on the subject land. He is claiming continued enjoyment of the garden next door as well as having the benefit of his own preferred recreational activity within his own property.

177. If Mr Knowles can be considered to be likely to suffer a detriment of any kind as a consequence of the variation, and his objection is not vexatious, it is enough to prevent the issue of a permit. But the fact that the previous owner did not see fit to build a house nearer to Mr Knowles' tennis court is merely a gratuitous benefit which the subject land currently provides to Mr Knowles. It is not a necessary result of the covenant. Keeping the covenant will not ensure that the vegetation near Mr Knowles' boundary is not cleared, and say a new double garage, or swimming pool, built there at any time. It is also of course possible that a new owner would demolish the existing house and building a new house on the subject land whether the covenant is varied to allow a second house or not.

178. Whether or not the covenant is varied, the Knowles house will continue to be separated from the subject land by the length of the tennis court, plus some perimeter planting, and whatever setback a new dwelling may have. It is from the choice that the Knowles made between an extensive garden or a tennis court on their own property that this concern for the continuance of the status quo on the subject land principally arises.

179. However, the probability that a new house would be built closer to the Knowles' boundary than the existing house increases if the covenant is varied. In the absence of building envelopes such as those proposed in the final building envelope plan, where the distance between the edge of the envelope and the Knowles' property is substantial, and the line of sight down through the tennis court would not look directly at a building wall, I consider that the variation would be a detriment, although a small one - because the element of possibility of the view being interfered with by the owner of the subject land within the terms of the covenant was always there, so that it is the increase in the probability of a change to the layout of the garden at the subject land arising from the variation that constitutes the detriment. The building envelope, however, eliminates that possibility, and does away with the element of detriment.

180. The covenant beneficiaries who are located further away from the subject land argued that they may suffer detriment as a result of the impact on their view line along Fairview Avenue. They produced no evidence of the impact of line of sight. Mr Jones, relying on the opinion of Mr Easton, submitted that none of the benefiting owners except Mr Knowles and the others whose properties abutted that subject land had a direct line of sight to the proposed building sites, and thus could not be considered to have a real chance or possibility of detriment.

181. I find it difficult to accept that the view in the case of Mr Bidere, across Pleasant View Crescent and over the top of the houses and vegetation on the east side of Pleasant View Crescent, then over the subject land towards the Dandenongs, would be interrupted or interfered with as a result of the proposed variation, having regard to the proposed building envelope with height restrictions.

182. Although Mr Watterson did state he had a line of sight, having seen his property and its position so far downhill from the subject land, I am not convinced that the view he had in mind actually identified the property correctly, if he meant he could see to the ground, or see the existing house.

183. The distance between the properties, and the number of features between the properties, is such that some change is always likely to be going on in the intervening space between the subject land and nos. 11 and 13 Fairview Avenue, even if it is only a further growth of vegetation over time. I note in particular that the intervening, more elevated properties over which Mr Watterson and Mr Kennedy have to look in order to see towards the subject land are mostly not burdened by the covenant, so are liable to a far greater degree of change than is proposed in this instance.

184. As regards the impact of a second lot on the frontage area through creation of another driveway and entrance, Mr Easton stated that some of the properties in the area already have two driveways, because they have loop drives serving a single house. But in any event, Mr Easton supported the proposed entrance feature and driveway proposal as overcoming concerns of that nature.

185. The impact on the streetscape, it seemed to me, would depend not only on the setback of the dwelling and garages, but on the angle of each driveway and the landscaping between the frontage and the house. Without knowing where the driveways would be located, dictating gaps in the landscaping, it would be difficult to assess what the impact from the street might be. It is the establishment of two vehicular access ways within a relatively narrow frontage that was submitted to be a detriment to the benefiting owners. The applicants have met this by designing an entrance that avoids any addition to the single crossover, and creates a new drive that only branches off from the existing drive some 10 metres from the frontage, at an angle and uphill from the road, and with accompanying landscape proposals. I regard the proposal in the latest plan, together with a proposed landscaping plan, as a good solution that would leave the crossover and entrance with the appearance of a single entry point in terms of what can be seen of them from the street. In my view, an entrance of the style now proposed would not create a detriment to any benefiting owner, or detrimentally affect the amenity of any neighbour.

186. Mr Easton pointed to the benefit of having building envelopes to control the placing of house walls - which are likely to be of a substantial height - and also to ensure that buildings, including garages, are set back to the point that the shape of the subject land enables them to be obscured from view, rather than dominating the frontage. There is no control over the location of a building within the site except Vic Code 1 at present.

187. The aerial photos reveal that the existing house on the subject land is very large in terms of spread, although of single storey construction. The studio comprising a separate building as shown on the feature survey plan is also quite large for an outbuilding, scaling at in excess of 10 by 6 metres. The south wall of the studio is built to 2 metres from the southern boundary. This is closer than anything proposed under the latest building envelopes.

188. I accept Mr Montebello's submission, that compliance with the Good Design Guide does not establish absence of detriment for the purpose of the covenant variation test. This is an accurate statement of one of the findings in Carrabott's case summarised at p.279. However, the development we are dealing with here is by no stretch of the imagination a Good Design Guide development, so I will merely state that in my view this principle applies to compliance with any of the planning standards that may apply under the Planning Scheme to the subdivision or development of the subject land.

189. In terms of the test to be applied to the variation of a covenant, I have to consider whether it is likely that an increase in traffic would be caused by the variation, and if so, whether that would be a detriment to a benefiting owner. I do not consider that either has been established. It was stated by one of the objectors, without any contradiction, that "everyone" had between 2 and 5 cars. This is borne out by the extent of garaging, some of it highly visible from the streets. If one new house had a single family with four children and four cars, it would quite possibly generate more traffic than two houses with two smaller families each with two cars. Some small unquantified element of additional traffic that is well within the capacity of the road system is unlikely to cause a detriment to other properties on the same road network. The overall increase between what might have been generated by the existing house and by this proposal might well hinge on how many contractors arrived each week to serve each house, and how much entertaining was done. The difference in traffic generation between one and two substantial houses of the types which appear to be currently popular in this area is in my view not enough to quantify objectively. I do not consider that it is likely a benefiting owner would suffer a detriment on account of increased traffic.

190. I have already dealt separately with the "precedent" and "increased density" issues.

191. The further case referred to by Mr Easton, Brownell v Boroondara (Application no.1998/23135, determined by Mr Mulcahy on 8 September 1998) refers only to an instance of a 2-lot subdivision, and the tests to be applied in considering the application. The densities in question are not comparable to the lot sizes under consideration in this case. Nor is there any need here to consider the Tribunal's power to impose conditions in a subdivision permit equivalent to applying the Good Design Guide to construction of a house on the site. In terms of development control, the applicants have offered a number of conditions which have been designed for this specific application and which overcome specific aspects of alleged detriments.

192. Whether the various ameliorative measures offered by the applicants could be enforced by the objectors in the same way as the covenant in its present form can be enforced was also raised as an issue giving rise to possible detriment. If compliance with properly identified building envelopes were to be required by an agreement between the responsible authority and the landowners under Section 173 of the Act, and a memorandum of the agreement entered on the title, this objection would be met, in that failure to comply with such an agreement is a matter enforceable by any person under the enforcement order provisions of the Act, without any need for the applicant to establish standing.

193. I have concluded that, objectively considered on the basis set out in the Carrabott case, the proposals for building envelopes, the driveway and entrance details and landscaping overcome those matters raised by the objectors where a real possibility of detriment may have resulted from the proposed variation.

194. The Tribunal's attention in the Carrabott case was focussed on the issue of detriment: what that meant, and in particular what the role of a "perceived detriment" was in Section 60(5)(a) of the Act. But in this case, I also have to look at Section 60(5)(b), and to determine whether "that owner" who has objected, did so "vexatiously".

195. Mr Montebello, turning to the second aspect of this test, submitting that none of the objectors' submissions were "vexatious"; that they were made in good faith out of genuine concern for the protection of the covenant that applies to the subject land; and that Section 60(5)(b) therefore created a bar to the variation of the covenant.

196. In support of this proposition, Mr Montebello cited Mr Easton's admission, in cross-examination, that Mr Knowles' concerns were "reasonable". Mr Easton made the same concession with the other adjoining owner on the northern boundary, who did not object to the application.

197. The context of that response from Mr Easton was his explanation of why he had organised the redesign of the proposal in such a way that the building envelope for the northern lot was moved right away from Mr Knowles' property. I took him to mean that Mr Knowles' original objection and concern were reasonable, but as a result of his objections, his concerns had been fully addressed. I do not take Mr Eastern's reply as being a recognition that Mr Knowles' concerns are still reasonable, having regard to the new building envelope.

198. On the first hearing day, Mr Montebello cited Jatka v Boroondara with respect to its finding that the test in of Section 60(5)(b) of the Act was different, and more restrictive, than the test in Section 60(5)(a). The Tribunal upheld a submission (made at pp.13-15) that if benefiting owners who had objected to the variation had an arguable case, and there was nothing to suggest that they had pursued their objections other than in good faith, the Tribunal could not be satisfied under Section 60(5)(b). Mr Montebello relied on the following passage in which the Tribunal summed up the argument (from p.14):

"...... it was not correct that just because a belief in a detriment, if objectively assessed, is not found to be a likely or probable detriment, the objection should be dismissed as vexatious. Rather, it is sufficient only to find that there is a possibility of detriment, Mr Stewart said, for the objection not to be vexatious."

"Mr Stewart's view is correct, I believe, that the test under (a) is the likelihood that a real detriment will result, but the test with respect to paragraph (b) is not that probable detriment will occur, but rather consideration needs to be given as to whether there is a possibility of detriment, which is neither fanciful nor remote. That is, it is sufficient to find that there is a prospect of detriment, rather than a probability. If there is such a prospect, it lends the objections a valid foundation, and means that they have not been instituted without sufficient grounds (and hence are not vexatious)."

200. In the Jatka case, the Tribunal found that the objections as to alleged detriment were "fanciful and without foundation", and directed the grant of a permit on that basis. If the allegation of possible detriment was fanciful and without foundation, it would follow that the objector's case was hopeless, and thus vexatious.

201. Mr Montebello's submission on this issue was primarily related to the test in Jatka, but went on to argue that the objectors' submissions were neither untenable nor unarguable. This is a reference to the tests applied by Mr Byard in Wilde v City of Moonee Valley, McKay & Ors 18 AATR 145 at p.163. Mr Byard found that the objections in that case were vexatious both in the "ordinary sense", quoting the Macquarie dictionary definition, the relevant part of which would be "instituted without sufficient grounds, and serving only to cause annoyance", and also in the sense used in vexatious judicial proceedings, quoting Attorney-General for NSW v Wentworth (1988) 14 NSW LR 481, being -

"proceedings that are obviously untenable or manifestly groundless so as to be considered utterly hopeless or alternatively proceedings instituted for a collateral purpose."

202. Mr Jones submitted that in considering the effect of Section 60(5)(b) in Jatka v Boroondara, there was a slide in the reasoning from Section 60(5)(a) to (b) which should not be accepted. This was that if there was a benefiting owner who objected to the variation, irrespective of a finding under Section 60(5)(a) that no benefiting owner would be likely to suffer detriment of any kind as a consequence of the variation, no permit could be granted unless the objection was "vexatious or not made in good faith", under Section 60(5)(b).

203. The Tribunal in Carrabott considered (at p.279) whether "likely" should be treated as "probable" in the context of the expression "will be unlikely to suffer any detriment" and concluded that the expression -

"..... does not necessitate a finding that detriment will occur as a probability, rather it is sufficient that there be a possibility, which is neither fanciful nor remote that a detriment may occur."

204. In other words, the test adopted in Jatka, treating "a possibility of detriment, which is neither fanciful nor remote" as establishing that an objection is not vexatious, is more correctly treated as being part of Section 60(5)(a), not (b), unless (b) adds nothing to the test in (a). Where a benefiting owner has objected to the proposed variation, I consider that the test in (b) is a different and higher test than in (a). I am satisfied that the final version of the proposal is unlikely to cause any detriment to any benefiting owner; but that is not the end of the matter.

205. This issue was directly in point in the case of Carson Simpson Pty Ltd v Maroondah City Council (1998) 1VPR 132, a decision of Mr Byard, relied on by Mr Montebello on the last hearing day. This case threw further light on Mr Byard's own earlier decision in Wilde's case: see p.136. He gave some further explanation, but (at p.136) confirmed the statement on the issue in Wilde's case that Section 60(5)(b) -

" ........may prevent the grant of a permit even though the responsible authority is satisfied that the grant of a permit is unlikely to cause any owner of any land benefited by the restriction to suffer a detriment of any kind."

206. Mr Jones submitted that the ultimate question came down to deciding whether it was accepted that the interpretation of Section 60(5) in Carson Simpson was correct, or whether if the Tribunal is satisfied that the benefiting owners are unlikely to suffer detriment, a permit can be issued. He submitted that Carson Simpson was not correct in finding that even if the Tribunal is satisfied that an owner of benefiting land is unlikely to suffer detriment, so long as the objection is made in good faith it is a bar to the grant of a permit.

207. The subject of Section 60(5)(a) is an owner of land benefited by the covenant whom the Tribunal considers will be unlikely to suffer detriment of any kind as a consequence of the removal or variation of the covenant. It is "that owner" who is also the subject of Section 60(5)(b). In other words, first a finding is made under (a). Paragraph (b) identifies the owner with which it is concerned as that same owner who has already been the subject of a finding under (a). It then goes on say that if that owner has objected, the Tribunal must not grant a permit unless it is satisfied that the objection is either vexatious or not made in good faith.

208. I have come to the conclusion that Mr Montebello's submission is correct. Once there is an objection from a benefiting owner, this Tribunal does not have the power to vary the covenant (or remove it) merely because it is satisfied that detriment is unlikely under Section 60(a). The Tribunal can only vary the permit under (b) if it is satisfied that the objection, once made, is vexatious or not made in good faith.

209. Mr Montebello also cited Mentzos v City of Monash (Application no.1998/71575, unreported, a decision of Messrs Walker and Barr, dated 17 March 1999. In this case, the Tribunal first considered (at p.5) whether there was any evidence to suggest that the objections received from benefiting owners were vexatious or not made in good faith. It was found that there was no evidence to suggest that the real ground of their objection to the application was anything other than a genuine desire to maintain the benefit of the covenant. Further, the Tribunal was not satisfied that the owner of any land benefited by the covenant would be unlikely to suffer detriment. The covenant was part of a scheme to ensure only one detached house on each lot throughout the subdivision; those purchasing the lots did so in the knowledge and on condition that they would enjoy this benefit and in return, would be subject to the same restriction as everyone else who purchased a lot.

210. The Tribunal in Mentzos went on to deal with the effect of precedent. It stated (still at p.5) that it was the cumulative benefit of all the covenants that each owner enjoyed; to remove one was removal of a part of a substantial benefit, being the loss of the protection provided by the covenants for a low density area. Even a loss of a small part of this benefit, it continued, would constitute a detriment. It could not be said that there was no detriment.

211. It can be seen that there is a factual difference between the situation in that case and the present situation. In this area, only a minority of owners have the benefit of the covenant. Many have neither the benefit nor the burden. The perceived benefit of protection for lower density living is not universally available even to those lots in this area that are affected by the covenant. The applicants must have been aware of the burden of the covenant when they bought, but the area is not a homogeneous "covenanted estate".

212. Because the Tribunal in Mentzos had already found that there was a detriment against which the benefiting owners must be protected, the objections could not be considered vexatious.

213. This recital merely underlines one difficulty in the decision in the present case. There is no detriment through creating a precedent in my view. Apart from the fact that the density proposed is the common density in the area (and the lots are greater in area than some of those owned by benefiting owners), the covenant does not apply to every lot anyway.

214. One of the differences between a finding of "no detriment" based on a revised proposal and a finding that an objection was vexatious must be that the objection was not directed to the revised version, but to the advertised version of the application. The Tribunal in Wilde's case (at p.163) considered the question of whether the test for a vexatious objection had to be considered in the light of the case as it was revealed when it was commenced, or to the case as it was known at the end of proceedings, with all the evidence in, at the time the decision was made. The Tribunal decided in that case that it could consider the whole proceeding.

215. Normally, if the "vexatious" objection is taken, this would be determined before the case got to a hearing on the merits. Where the case is allowed to get to the end instead of having this objection raised as an interlocutory matter, I agree that it is difficult to totally ignore the greater part of the information then before the Tribunal for this purpose. However, I do not think it would be fair to the objectors to judge their objections under Section 60(5)(b) solely in the light of how they stand up to the applicants' case at the end of this hearing, after three amending plans have been produced.

216. I think the advertised form of the application for the permit (being for variation of the covenant without any offers of the ameliorating steps which have since been proposed while the application is before the Tribunal) could have given rise to an arguable case that there were detriments to benefiting owners, and that all the objections of the benefiting owners could not be said at that point to be "obviously untenable or manifestly groundless". On the contrary, some detriment to at least one benefiting owner may well have been found if the application had proceeded without any of the proposed modifications.

217. Even after the substitution of "variation" instead of "removal" of the covenant in the permit application, I consider that there was an arguable likelihood of detriment to Mr Knowles, because of the increased chances of a new house being constructed closer to the boundary of his property, interrupting his outlook towards the established vegetation on the subject land, and diminishing his perception of the spaciousness of the area. I do not think the same can be said for Mr Bidese's objection, for reasons already given. But I do consider that without the proposed controls over the entrance, the variation to allow a second house was likely to result in the interruption of the comparatively narrow frontage by a second driveway, and the area immediately behind it largely devoted to the two access roads in a manner that would have been detrimental, in a perceptible way, to the benefiting owners in Fairview Avenue, Messrs Kennedy and Watterson, even though they only saw it when they walked or drove up the street past it. This would have been inconsistent with the character of the area as recognised in the Neighbourhood Study. I do not think it could be said that these objections were manifestly groundless.

218. It is possible that at some point in a proceeding, an objection becomes so manifestly groundless or hopeless that the owner could be regarded as becoming vexatious if he or she continued with it. That is not so in the present case. After having received the latest modification of the plans, and revised text for the restriction, the objecting owners were in my view acting reasonably in persisting to hear the rest of Mr Easton's evidence, to have their chance to cross-examine him, and to listen to the rest of Mr Jones' argument, which had barely been started on the first day.

219. The issue of "precedent for small lot subdivision" is one that I consider as always an "obviously untenable" and hopeless argument, even in the form in which the permit application was lodged. Similarly, the "traffic" objection is "obviously untenable" on the basis put forward in the objections.

221. These submissions were made by unrepresented objectors, and I do not doubt that they were sincerely made, and arose from real concern for the area. They are not to be considered intentionally vexatious in the sense of intended to cause annoyance, but in the sense used in Attorney-General for NSW v Wentworth (quoted above).

222. Although some of the objections raised were "vexatious" but the purpose of Section 60(5)(b), some were not. The Tribunal is not satisfied for the purpose of Section 60(5)(b) of the Act that the owners of land benefited by the covenant who have objected to the proposed variation have objected vexatiously or otherwise than in good faith. For that reason, no permit must be issued for the variation of the covenant.

223. However, that is no reason to refuse to grant the permit for the subdivision. The relevant considerations in that application, which I referred to above, are not affected by the test in Section 60(5)(b) of the Act. I am satisfied that it is proper to grant that permit having regard to the considerations referred to above. If in due course the applicants obtain a modification of the covenant from the Supreme Court, or by amendment of the Planning Scheme, they will have the subdivisional boundaries already established.

224. Turning to the question of conditions, the draft set of conditions prepared by the Council and discussed at the hearing included elements referable to the variation as well as to the subdivision itself. Although I consider that the construction of any additional road at the area of the entry is a matter relevant to the subdivision, because of the creation of an easement and also because it is the creation of a second lot that gives rise to the need to take steps to prevent the character of the area being affected by construction of an unnecessary second crossover, the building envelopes are not referable to the subdivision. I do not consider that any reference to building envelopes should be included in the subdivision permit. To do so would be looking ahead to the possibility of variation of the covenant by other means and by somebody else. If Section 60(5)(b) bars this Tribunal from granting a variation, it also bars it from placing conditions and limitations on the buildings that may follow a variation.

225. Nor do I consider that restrictions on vegetation clearance can be justified over the entire area, although the area near the frontage, affected by the proposed carriageway easement, is in a different category both because of the connection between the need for access to a second lot affecting existing vegetation and because of the potential impact of denuding the frontage on the desired characteristics of the area, as recognised in the Character Study. I have looked further than the 6 metre strip referred to in the proposed Overlay control, and taken the area to be the subject of a vegetation condition to the approximate depth of the proposed landscaped feature entrance.

226. I have modified the proposed conditions accordingly. Needless to say, there is no ground for a Section 173 agreement designed to protect building envelopes in a permit restricted to the subdivision.