Victorian Civil and Administrative Tribunal|2010-09-21|Before: Mr J

The applicant seeks to remove this covenant from the subject land in order to enable an application to be made for the development of the land for more than one dwelling.
A permit is required pursuant to Clause 52.02 of the Brimbank Planning Scheme to remove the restriction. The purpose of Clause 52.02 is 'to enable a use or development that complies with the planning scheme after the interests of affected people are considered'. Under the clause before deciding on an application in addition to the decision guidelines in clause 65, the responsible authority must consider the interests of affected people.
Four objections to the permit application were received by the Responsible Authority only one of the four objectors is a beneficiary of the covenant, being the land at 38 Collins Street. The objector/beneficiary has not become a party to the application before the Tribunal.
The subject land is contained within the Residential 1 zone under the Brimbank Planning Scheme. Under the zone provisions a permit is required to develop two or more dwellings on a lot. The planning scheme contains a number of policy provisions which encourage the provision of increased housing to accommodate the expected increase in population as well as continuing to protect the liveability of established residential areas[1]. Consideration is required to be given by planning authorities to the 'opportunities for the consolidation, redevelopment and intensification of existing urban areas'. Clause 16 seeks to providing for housing diversity which can be achieved by 'increasing the supply of housing in existing urban areas by facilitating increased housing yield in appropriate locations'.
Under section 60(5) Planning and Environment Act 1987 a Responsible Authority and in turn the Tribunal must not grant a permit to remove a restriction unless it is satisfied:

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

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

I was advised the property that has the benefit of the covenant and whose owner objected to the responsible authority, whilst located in the same street is approximately 63m from the subject site and located on the opposite side of the street.
I was also advised that over the last two years the Responsible Authority has issued permits for the covenant to be varied or removed at 14 & 19 McIvor Road as well as 31 Collins Street, which is in much closer proximity to the subject land than the land of the beneficiary. It was also noted that within Collins Street five properties contain more than one dwelling and in the wider neighbourhood of Alfrieda, Erica, View, Craigielea Streets and McIvor Road there are a number of lots that contain 2, 3 and in one case 4 dwellings. Whilst I do not consider this leads me to the conclusion that this particular covenant is a 'dead wood' covenant it does suggest that overtime a marked erosion of the covenant has occurred.
As stated by the Tribunal in Northern Exposure v Darebin CC[2] 'it is not a question of whether the Tribunal is satisfied there will be detriment: the Tribunal must be affirmatively satisfied that there will be none. The mere assertion of the existence of detriment is not sufficient to demonstrate its existence. It is not necessary for an affected person to assert detriment. This is so for two reasons: first, because the Tribunal must be affirmatively satisfied of a negative, namely that there will probably be no detriment of any kind; secondly, the Tribunal is entitled to form its own view from the evidence'.
The beneficiary raised in general terms the loss of value of her home, more cars and parking problems, more undesirable people; and noise problems.
Given the relationship of the beneficiary's property to the subject land I am unable to conclude that the issues referred to by the beneficiary will result in detriment of any kind being suffered by the beneficiary's property. The issues raised are all issues that can be raised and considered if and when there is a future application for a planning permit for an additional dwelling on the lot.
There are 14 properties within the same street as the subject land that have the benefit of the covenant including that of the objector to the Responsible Authority. Whilst I am required to take account of benefiting lots, even though none of the beneficiaries have either objected to or become a party to this application, I note the properties immediately abutting the subject land do not enjoy the benefit of the restriction on the subject land and the nearest benefiting lots are at least two or more lots away.
Having taken into account the relevant decision guidelines contained in clause 65, the provisions of section 60(5) and the interests of affected people, I consider a permit should be granted for the removal of the restriction from the subject land.

Variation of the Registered Restrictive Covenant contained in Instrument of Transfer No 1286507 as it relates to Certificate of Title Volume 08162 Folio 865 so that the clause "shall not erect or cause or permit to be erected on any or either of the said lots hereby transferred any building other than one dwelling house with usual outbuildings and such dwelling house shall be of the value of not less than Three hundred and fifty pounds" shall not apply to Lot 161 on LP11231

1. This permit will expire if the removal of the restriction is not registered at the Land Titles Office within two years of the date of this permit.

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

Environment Act 1987

Nguyen v Brimbank CC [2010] VCAT 1558 (21 September 2010)

Nguyen v Brimbank CC [2010] VCAT 1558

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Nguyen v Brimbank CC [2010] VCAT 1558 (21 September 2010)