(c) no such building, outbuilding or church shall be constructed wholly or in part of second-hand materials;

(d) every such dwelling house or church shall exclusive of all verandas and outbuildings be of an area of not less than 1000 square feet.

1. The owner of the review site has lodged a planning permit application, whereby it is proposed that this covenant be removed in full. Whilst the removal of sub-clauses (b), (c) and (d) is non-contentious, objections have been received from two neighbours with respect to the proposed removal of the "no more than one house or church per lot" requirement in sub-clause (a). One is a beneficiary of the convenant (Mr Powell), whereas the other is an ordinary objector (Ms Symmonds).
2. In relation to the processing of this permit application by Council, such removal was supported by the Council Delegate Report. However Council has issued a Notice of Refusal to Grant a Permit. Whilst there were several grounds of refusal, in substance the only issue arising is whether or not the proposal would satisfy the necessary test for the removal of a restrictive convenant under Section 60(5) of the Planning and Environment Act 1987, bearing in mind that one of the two objectors (Mr Powell) is a beneficiary.
3. In relation to the contents of Section 60(5), it reads as follows:

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

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

1. This refusal was in turn appealed to the Tribunal, and came before me as a half-day hearing on 26 November 2012. I heard from all of the parties listed above. I was also shown a good range of plans, photos and aerial photos. I read out to the parties the key provisions from Section 60(5) and consider it unnecessary to repeat same here.
2. Near the end of the hearing, I advised that I would be in a position to give the parties my decision after a short break. The hearing was briefly stood down, then I returned to verbally provide the parties with the details of my decision.
3. I have set out below a brief summary of my decision, bearing in mind that (as I explained to the parties at the time) I have gone to some trouble to spend more time at the end of the hearing verbally explaining my findings to the parties.
4. In terms of clarifying the Tribunal's role in this proceeding, it needs to be understood that the Tribunal is considering no more or less than the proposal that the "not more than one dwelling or church per lot" covenant be removed from the title to the subject land. The actual form of any development or subdivision in the future is an issue for another day.
5. With this approach in mind, I am satisfied that it is an overwhelming case in favour of the ordinary planning merits of removing the covenant. Whilst I acknowledge the concerns of Ms Symmonds (who is an ordinary objector who lives close by the review site), the following factors together provide a very strong case that it is a reasonable planning outcome per se for there to be scope for more than one dwelling to be built on the review site - the site is zoned Residential 1, is essentially fully-serviced, is located very close to a school and relatively near the Lilydale town centre, and it is very generously-sized at over 2000 square metres. In relation to the sheer size of the review site, it is very difficult to see how one can argue on ordinary planning principles that it is unreasonable for there to ever be more than one dwelling to be built on the review site, when the size of the particular land here is roughly three times that of a conventional 750 square metre suburban lot.
6. With respect to the quite rigorous statutory test to be met under Section 60(5) of the Planning and Environment Act 1987, the key objector here is Mr Powell rather than Ms Symmonds, as Mr Powell alone is a beneficiary of the covenant. However, we also know that Mr Powell lives in a different street located about 500 metres south of the review site.
7. My finding is that the proposal does satisfy the necessary test under Section 60(5), and hence my overall finding is that it is appropriate that the covenant be removed. I am satisfied that the rigorous statutory test under Section 60(5) is met in the circumstances here, relying on the fact that Mr Powell not only lives about half a kilometre to the south, together with his house being in a quite separate street which is a cul-de-sac. It also needs to be said that in terms of how Mr Powell presented his case to me at the Tribunal, his stated concerns were more in the nature of his unhappiness about potential medium-density housing in this location and protecting the character of the neighbourhood, rather than Mr Powell actually putting to me how he would be personally affected by the proposal. To the extent that Mr Powell did fleetingly raise any "personally affected"-type submissions, I regard them as so remote as to be quite inconsequential.
8. I also rely here on the fact that the previous cases indicate that the Tribunal's assessment of any potential "detriment" or "perceived detriment" impacts on a beneficiary is carried out objectively rather than subjectively. In other words, it is not enough for Mr Powell simply to assert that he will suffer either real or perceived detriment as a result of the proposal - he must actually provide real evidence of same (which I fail to see here).
9. In summary, for the reasons set out above, I am satisfied that the proposal is deserving both on the planning merits, and also in meeting the relevant test under Section 60(5) of the Planning and Environment Act 1987.
10. To an extent that Ms Symmonds during the hearing expressed concerns as a nearby neighbour about the likely future redevelopment of the review site if the covenant was removed, and how same might impact upon the neighbourhood character or her own amenity, I acknowledge that these are quite legitimate concerns which need to be properly addressed as part of any future planning proposal for the development of the review site. I trust that Council and the owner of the review site have taken these concerns on board, and would hope that there would be sensible discussion of these concerns between all stakeholders as part of any moving forward of this project.

The permit shall allow the removal of the restrictive covenant found in the Transfer of Land No. A794273 dated 30 June 1959, in accordance with the permit conditions set out in the Appendix to this decision.

1. This permit will expire if the following circumstances applies:
   1. The permitted removal of the subject covenant is not registered at the Land Titles Office within two (2) years of the date of this permit.

The Responsible Authority may extend the two-year period if a request is made in writing before the permit expires, or within three (3) months afterwards.