[2003] VCAT 1839

1. The application for review is allowed. The decision of the Responsible Authority dated 26 May 2003 is set aside. A permit is granted.

2. The Responsible Authority is directed to issue a permit to allow the Restrictive Covenant contained in Certificate of Title 8139 Folio 506 Instrument of Transfer No 2686807, to be varied by the deletion of part (c) of the restriction and to allow the construction of three attached single storey dwellings to the rear of the existing dwelling at 4 Maclagan Crescent, Reservoir subject to the following conditions:

1 Before the development starts, the land shown as Right of Way on the plans submitted with the application must be legally acquired by the owner of the site.

2 Before the development starts, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application, but modified to show:

a) The crossing for the shared driveway moved further west to provide for a twelve (12) metre dimension between crossings, measured at the kerb.

b) The carport for the existing dwelling setback a further 500mm from the street.

c) Elevations of the existing house as part of the development, including the proposed carport, which shall not exceed the eave height of the existing dwelling or 2.7 metres in height above natural ground level (whichever is the lesser).

d) Pedestrian access to the drainage reserve at rear provided for residents, on the west side of the Unit 4 carport.

e) Storage sheds for Units 2 and 3 relocated or modified to improve the amenity of key private open space areas, to the satisfaction of the Responsible Authority.

f) A landscape plan prepared by a person knowledgeable in landscape architecture indicating all plants (including botanical names, numbers, pot size and height at maturity) to the satisfaction of the Responsible Authority.

3 The layout of the site and/or the size of the proposed or existing buildings and works and/or the internal layout and use of the building as shown on the endorsed plan/s shall not be altered or modified (whether in order to comply with any Statute, Statutory Rule or By-Law or for any other reason) without the consent of the Responsible Authority.

4 Vehicle crossings must be constructed in the locations shown on the endorsed plans to a standard satisfactory to the Responsible Authority.

5 Before the use and/or development starts, areas set aside for parking vehicles and access lanes as shown on the endorsed plans must be:

a) Constructed to the satisfaction of the Responsible Authority;

b) Properly formed to such level that they can be used in accordance with the plans;

c) Surfaced with an all-weather seal coat to the satisfaction of the Responsible Authority.

d) Drained and maintained to the satisfaction of the Responsible Authority; and

Parking areas and access lanes must be kept available for these purposes at all times.

6 The landscaping of the site shall be effected in accordance with the endorsed plan and be maintained to the satisfaction of the Responsible Authority.

7 The stormwater from the property to be via one of the following methods:-

a) Connect to the existing stormwater drain in the easement along the western boundary of the property via one discharge point to Council requirements with the discharge from the whole site being limited to not more than .35 coefficient of run off with a return period of one in five years. Catchment times are to be provided by Antonia Katsakis on 92304685 from Council's Engineering Services Department.

b) Connect to the existing stormwater drain in the easement along the western boundary of the property to Council requirements subject to payment of a drainage contribution to Council's Engineering Services Department of $1573.00.

8 Dwellings shall not be occupied before completion of all works, including landscaping.

9 No exterior plant equipment shall be placed on the roof of the developments so as to be visible from a public road, to the satisfaction of the Responsible Authority.

10 All plumbing and external services on external walls shall be concealed or alternatively integrated into design of the development to the satisfaction of the Responsible Authority.

11 The development must be constructed to achieve a four star energy rating in accordance with the FirstRate report submitted with the application (Reference Z:\0\U-1\325\TP\325).

12 This permit shall expire if the development is not commenced within 2 years of the date of the permit and completed within 4 years. The Responsible Authority may extend this period if a request is made in writing before the permit expires or within 3 months afterwards.

13 No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

14 Finished floor levels must be a minimum of 300mm above the applicable flood level.

15 Any new garage, carport or vehicle parking area must be constructed with finished floor or surface levels a minimum of 150mm above the applicable flood level.

16 Prior to commencement of works separate application, direct to Melbourne Water, must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses. Prior to accepting an application, evidence must be provided demonstrating that Council has considered that it is not feasible to connect to the local drainage system.

Ms S Porritt of Counsel on behalf of J Mattuccio and D Marotta

Ms M Gasset on behalf of the Department of Human Services

1 This is an application for review against the decision of the Responsible Authority to refuse to grant a permit for removal or variation of a single dwelling restrictive covenant and construction of three attached single storey dwellings to the rear of the existing dwelling at 4 Maclagan Crescent, Reservoir.

2 At the commencement of the hearing Mr Marotta, who did not object to the application for permit but who is a beneficiary of the registered restrictive covenant was joined as a party.

3 The subject site is located on the north side of Maclagan Crescent. The site is irregular in shape with a frontage of 18.29m a depth of 54.3m and an overall site area of 970m². A single storey brick dwelling is located on the site, setback 7.5m from Maclagan Crescent, 3.3m to the east and 1.17m to the west. An unmade right of way 3m in width abuts the site to the west.

4 Immediately to the east of the site is a single storey brick dwelling used as a shared housing unit by the Department of Human Services. To the west is a double storey A frame weatherboard dwelling owned by Mr Martuccio. The rear of the site abuts an open drainage reserve used as passive open space which extends from High Street to the east and curves around to Broadhurst Avenue and Barry Street. Mr Marotta's property at 33 Hobbs Crescent is located a short distance away to the west and abuts the drainage reserve.

5 It is proposed to remove the existing single dwelling restrictive covenant contained in Transfer No 2686807 on Certificate of Title 8139 Folio 506 which applies to the subject land and to construct three single storey dwellings at the rear of the existing dwelling.

6 The dwellings are to have one bedroom, bathroom, open plan kitchen, living/meals area. Vehicular access to the rear units is to be along the west boundary to a single carport, with the carport to unit 4 is to be constructed on the right of way. A new carport is to be constructed along the eastern boundary for the existing dwelling. Private open space is to face east for units 2 and 3 and north for units 1 and 4. Materials are to be face brick with a hipped pitched tile roof.

7 Seven objections were received to the application for permit but none of the objections were from beneficiaries of the covenant.

8 The Responsible Authority determined to issue a notice of refusal on the following grounds:

1. The Responsible Authority is not satisfied that the owner of any land benefited by the restriction will be unlikely to suffer any detriment of any kind (including perceived detriment) as a consequence of the variation of the restriction.

2. The proposal is considered to be an overdevelopment and not consistent with neighbourhood character.

9 The following restrictions are contained in the restrictive covenant. Of particular relevance to this matter is the restriction contained in part (c):

(a) No hoarding for advertisement purposes shall be erected on the said Lot hereby transferred.

(b) No quarrying operations shall at any time hereafter be carried on in or upon the said Lot and no stone clay gravel or sand shall at any time hereafter be carried away or removed from the said Lot except for the purpose of excavating for the foundation of any building to be erected thereon.

(c) No shops laundries factories or works shall be erected on the said Lot and not more than one dwelling house shall be erected on any one Lot and the cost of constructing each house shall not be less than Four Hundred Pounds (inclusive of all architect's fees and the cost of erecting outbuildings and fences) [Tribunal underlining]

10 The relevant section of the Planning and Environment Act 1987 upon which consideration of the application in relation to the restrictive covenant must be made is Section 60(5) Planning and Environment Act 1987 (PE Act) which provides:

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

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

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

11 It is understood the subject site was one of the last remaining lots transferred out of the parent title and as the covenant is expressed to be made for the benefit of 'the registered proprietor or proprietors for the time being of the land remaining untransferred in the said Certificate of Title' only 5 remaining lots have the benefit of the covenant relating to the subject site. Neither Mr Martuccio's property or the Department of Human Services property that abut the subject site are beneficiaries of the covenant.

12 The relevant lots that benefit are described as numbers 33, 41 and 43 Hobbs Crescent, 987 High Street and 1A Maclagan Crescent as well as the drainage reserve that extends along the rear of the subject site. Number 33 Hobbs Crescent is Mr Marotta's property, which also abuts the drainage reserve, 987 High Street and 1A Maclagan Crescent are located diagonally opposite the subject site.

13 As stated previously none of the owners of the above described land, being beneficiaries of the covenant, objected to the application for permit. Whilst Mr Marotta has now been joined as a party to the application for review he did not object to the permit application, although he was given notice of the application as a beneficiary of the covenant.

14 Ms Porritt submitted that on the basis of Mr Marotta's objection, that is that he will suffer a loss of amenity as a result of the removal or variation of the restriction, the application of Section 60(5) PE Act operates as a bar and the Tribunal is unable to approve the application for removal or variation.

15 Mr Easton questioned whether Mr Marotta was expressing genuine concern. Section 60(5) PE Act contains two parts. As Mr Marotta did not object to the permit application, it is only the first limb contained in subsection 5(a) that is relevant to the Tribunal's consideration in this matter. Mr Marotta was not an objector to the permit application, therefore I am unable to consider the second limb of Section 60(5)(b) PE Act, that is that the objection is vexatious or not made in good faith. I however consider I can take into account the fact that Mr Marotta did not originally object, but in doing so I am still required to consider whether any beneficiary of the covenant is unlikely to suffer any detriment of any kind.

16 Ms Porritt referred the Tribunal to a number of previous Tribunal decisions that have dealt with removal or variation of registered restrictive covenants: C Carabott & Ors v Hume City Council and T Scuderi 22 AATR 261; Carson Simpson Pty Ltd v Maroondah City Council and Kelly & Others 1 VPR 130; Topcat Homes v Monash City Council [2000] VCAT 1449 (30 June 2000); Bevilacqua v Port Phillip City Council & Others [2002] VCAT 1537 (26 November 2002); Ambrose Holdings Pty Ltd v Boroondara City Council [1999] VCAT 185 (30 June 1999) and McFarlane v Greater Dandenong City Council and Ors [2002] VCAT 696 (26 June 2002).

17 In McFarlane v Greater Dandenong City Council and Ors the Tribunal distilled the conclusions reached by the Tribunal in C Carabott & Ors v Hume City Council and T Scuderi as follows:

1. It is for the Tribunal to determine whether it is satisfied on the balance of probabilities that any covenant beneficiary "will be unlikely to suffer any detriment of any kind if the variation is permitted." In other words it is not a question of whether the Tribunal is satisfied there will be detriment: the Tribunal must be affirmatively satisfied that there will be none.

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

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

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

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

18 Ms Porritt submitted, it was Mr Marotta's view that he derived his amenity from living in an area developed by single dwellings on large allotments, as envisaged by the original subdivider. She further submitted that, although the owners of 987 High Street and 1A Maclagan Crescent, located diagonally opposite the subject site, were not before the Tribunal, nor the other owners of properties benefiting from the covenant, the Tribunal was still required to take into account any detriment that may accrue to these lots.

19 In this respect it is considered that if the Tribunal is of a mind to conclude that the restriction may be removed or varied then the Tribunal must have come to the conclusion referred to in McFarlane that 'it is not a matter of whether detriment can be demonstrated. What must be demonstrated is the complete lack of it'.

20 There will be an increase in density, the dwellings on the subject site being increased from one existing dwelling to four. Along with this increase goes the usual changes of increase in the number of persons on the lot, increase in vehicles and changes to what is currently viewed as a single dwelling with an open rear yard to buildings now featuring more prominently within the rear space.

21 Although Mr Easton submitted that Mr Marotta lived a distance from the subject site and would not be in any way affected by the proposal, the Tribunal in its determination in Ambrose Holdings stated 'to move from a situation where one has the advantage of a legally enforceable restriction to maintain what is perceived to be a higher residential amenity viz without medium density development to one where the restriction is removed and the planning policies favouring medium density development apply with their full vigour, constitutes at the very least a perceived detriment'.

22 Mr Easton submitted, the drainage reserve is owned by Melbourne Water who have consented to the proposed development, 41 Hobbs Crescent is currently being developed with units based on a planning permit issued prior to December 2000, that is when the PE Act was amended preventing the grant of a permit if it would result in a breach of a registered restrictive covenant. As well 987 High Street has been subdivided into two lots.

23 Of more particular relevance, is that a permit has been issued for the removal of a single dwelling covenant (Permit No D274/00 issued 26 January 2001) on the land adjoining Mr Marotta at 35 Hobbs Crescent and three units have been constructed on the land.

24 Given that Mr Marotta lives in another street and some distance from the subject site the loss of amenity he refers to is considered to be a perceived loss, that is, he believes he will suffer a loss. Merely asserting this however is not sufficient to demonstrate that such a detriment exists. Should this perception be diminished by knowledge that there is a change in the density of the dwellings in the property adjoining Mr Marotta?

25 Will Mr Marotta or for that matter the other beneficiaries of the covenant be unlikely to suffer any detriment of any kind (including any perceived detriment)? Only five properties have the benefit of the covenant on the subject land and of those five properties, three are located in Hobbs Crescent. Unlike 987 High Street and 1A Maclagan Avenue, opposite, Mr Marotta's property in Hobbs Crescent is not located near the subject site, in fact it is located a considerable distance away, in another street, the subject site is not in what would be described as Mr Marotta's immediate neighbourhood.

26 Hobbs Crescent runs parallel to Maclagan Crescent, from High Street to Broadhurst Avenue. Properties on the northern side of Maclagan Crescent, which includes the subject site, all back onto the drainage reserve that runs from High Street across Broadhurst Avenue to Barry Street. Similarly the properties located on the southern side of Hobbs Crescent, which includes Mr Marotta's property also all back onto the drainage reserve. As Mr Marotta did not object to the permit application, I could conclude that he did not consider the subject site to be near enough to warrant his concern.

27 Although Mr Marotta says he will suffer a loss of amenity because there will be three additional dwellings built on the subject site, given the subject site is not located in Mr Marotta's immediate neighbourhood I have difficulty in reaching the conclusion that there will be any detriment, even a perceived detriment in the form of a loss of amenity to Mr Marotta. It might be said that he will suffer a loss of amenity as a result of additional dwellings being built on the adjoining property at 35 Hobbs Crescent, they are certainly in his immediate neighbourhood. Mr Marotta has said only that the removal of the single dwelling covenant 'would result in a loss of amenity that was derived from living in an area developed by single dwellings on large allotments' .

28 It should be remembered that restrictive covenants were placed on lots by subdividers in lieu of what would now often be found on permit conditions or controlled by planning schemes. The covenant in this particular matter indicates only a single dwelling should be located on the land and this has established a residential area of single dwellings on large lots. It is therefore considered that it is in the context of a residential neighbourhood that one then considers the loss of amenity that Mr Marotta is asserting. In this respect one generally looks at the location and what the existing amenity is and whether the change on the subject site will result in a detriment to the beneficiaries of the covenant. Detrimental causes to amenity within a residential neighbourhood and the way we live in a residential area may be noise, loss of sunlight, increase in vehicular traffic, overlooking and what has been described as 'appeal to our aesthetic judgment'.

29 It could be said that of these likely impacts, that of an increase in vehicular traffic and an appeal to Mr Marotta's aesthetic judgment, would be the only likely impacts that could arise as a result of the removal of the single dwelling restrictive covenant on the subject land and consideration of the placement on the land of additional residential dwellings, particularly given the distance from the subject site.

30 With regard to an increase in vehicular traffic, an additional three dwellings on the subject site could generate an additional three vehicles. It is said that the dwellings are proposed to be single bedroom and are aimed more at the elderly market, who may not have a high vehicle ownership. Given Hobbs Crescent and Maclagan Crescent run parallel to one another, I consider it is unlikely that there will be any impact on Mr Marotta in Hobbs Crescent by the increase of three vehicles in Maclagan Crescent. Access to High Street or Broadhurst Avenue can be gained directly via Hobbs Crescent, as they can via Maclagan Crescent, it is therefore unlikely that vehicles would be required to travel along Hobbs Crescent to access Maclagan Crescent or the other road network.

31 As I have concluded the possible increase of vehicles from the subject site will not impact on Mr Marotta, nor will they impact on the other beneficiaries in Hobbs Crescent. Nor will three additional vehicles in Maclagan Crescent impact on the two properties opposite, particularly as the vehicles can be accommodated on the subject site and the road network can adequately cater for the additional three vehicles.

32 With regard to 'aesthetic judgment', there is currently a dwelling located on the subject site, this dwelling is to remain, so if Mr Marotta or any of the other beneficiaries from Hobbs Crescent travel along Maclagan Crescent they will continue to observe the same dwelling that has existed on the subject site for a considerable time. If they choose to walk along the drainage reserve they could observe new buildings within the rear of the property, these buildings are no different to any other buildings they could at present observe from the drainage reserve. The materials and design of the buildings are what is expected within a residential area. Similarly the two properties opposite will continue to observe the existing dwelling in the street.

33 Whilst Mr Marotta has asserted he will suffer detriment, he has provided nothing but an assertion, which has no basis. There will be no detriment suffered by Mr Marotta or to any beneficiary of the registered restrictive covenant. In reaching this conclusion, I consider detriment to mean loss, damage or injury and in this respect there is no loss, damage or injury that would result from the removal of the single dwelling covenant. In reaching this conclusion I will therefore allow the application for removal of the single dwelling covenant, as this relates specifically to the covenant contained in part (c) I will allow only this part of the covenant to be removed.

34 In relation to the merits of the application for three single storey attached dwellings to be located on the subject land at the rear of the existing dwelling, I consider the proposal is supported by the policies contained within the Darebin Planning Scheme and will not result in any impact on the amenity of the properties abutting the subject site. Whilst the character of the neighbourhood is residential and the majority of lots contain single dwellings there are also a considerable number of lots with multi unit development.

35 Ms Porritt submitted Mr Martuccio's amenity would be impacted upon by the location of the driveway along the western boundary. It is noted that this area of land is shown on the Certificate of Title to the land as a road or right of way, although it is understood it is not owned by the Applicant. I am unable to conclude that there will be any impact on Mr Matuccio as a result of the location of the driveway. Mr Martuccio's dwelling is setback 4.4m from the boundary, the area to be used for the driveway continues to maintain the separation of Mr Martuccio's dwelling with that of the existing dwelling on the subject land. Use of this area for three vehicles to access or egress is no different to any other residential property. As a result of the placement of the driveway access to units 2, 3 and 4 along the western boundary, these units will be setback 4.5m, being a similar distance to that of the existing dwelling from this boundary. This will provide adequate separation from and result in no impact to the amenity of Mr Matuccio's rear private open space. I do not consider that there will be any unreasonable impact on Mr Martuccio's amenity.

36 The Department of Human Services submitted the proposed development would impact on the amenity of the rear open space of its property at 2 Maclagan Crescent. The private open space of units 2 and 3 is to be located opposite the building at No 2 . The windows in No 2 opposite these areas are to non habitable rooms. The private open space of unit 4 is located on the rear boundary. The bedroom of unit 4 is setback 3m from the eastern boundary, there are no windows on this side and the 3m setback area is proposed to be used as a service area. It is not considered that there will be any impact as a result of the units on the private open space of No 2.

37 Units 2, 3 and 4 are all single bedroom units, one car space is provided for each dwelling . This meets the requirements of the planning scheme and although it was submitted it was likely that two persons may reside in the dwellings this does not necessarily equate that there will be two vehicles for each unit. Mr Easton submitted that the proposal was aimed at the elderly and believed there may be limited car ownership.

38 The Responsible Authority submitted the size of the garages to units 2 and 3 were inadequate being 5m x 3.5m rather than 6m x 3.5m, particularly as part of the area is to be used for storage of the garbage bin. Mr Easton indicated they could be increased It however appeared to the Tribunal that they were shown on the plans as a carport rather than an enclosed garage. The size is therefore considered adequate.

39 For the above reasons a permit is granted subject to conditions for the construction of three single storey dwellings at the rear of the existing dwelling at 4 Maclagan Crescent, Reservoir. A permit is also granted for the removal of part (c) of the registered restrictive covenant.