6 Before dealing with my findings in this hearing, it is worth summarising the restrictions on title that are involved.

7 Firstly, there is a private restrictive covenant (as found in Instrument on Transfer No. S058066C dated 31 July 1992) on the title to the subject land, which imposes certain restrictions as to the materials to be used for any new dwelling, plus there is a requirement that any new built form must be either a single dwelling or a dual occupancy. As a proposal here will go no further than creating a dual occupancy, plus the choice of materials is consistent with this private covenant, it was common ground at the hearing that the proposal satisfies this private restrictive covenant.

8 I turn then to the s.173 agreement which affects the subject land which deals with noise issues (being 173 agreement No. R676393N). In essence, this 173 agreement No. R676393N sets out various noise attenuation measures that must be built into any new dwelling on any of the affected lots, so as to minimise the noise impacts of the freeway which lies to the north.

9 Although Ms Cincotta queried whether the proposed new dwelling would include all the necessary features to meet the requirements of this 173 agreement No. R676393N, she conceded that these noise requirements do not "knock out" the proposed second dwelling.

10 This leads us to the key restriction on title for our purposes here, being the other s.173 agreement No. R623053E. The key clause is cl.1.1, which provides as follows:

The Subdivider with the intent that its covenants hereunder shall run with the subject land under s.182 of the Act, binding its successors entitled to the subject land and every part thereof, hereby covenants and agrees:

1.1

That with the exception of lots designated as a dual occupancy site, not more than one dwelling shall be erected on each lot created on the plan.

1.2

Except with the written permission of the Council, the lots created on the plan shall only be developed in accordance with the neighbourhood design plan attached hereto and marked "B".

11 Attached to this 173 agreement No. R623053E is a plan described as being "Advanced Ridge Estate Stage 1". This plan shows the subdivision of the area generally east of the subject land, but the subject land does appear on the western edge of this plan. The plan sets out the building envelope which applies to each of these relevant lots. In all but two cases, every lot has a single building envelope, but lots 20 and 21 also have the words "dual occupancy" shown.

12 For the record, there were two other relevant documents discussed at the hearing. The first one was a letter dated 6 September 2005 from the Applicant's solicitor, Ms Dorota Sokolovski. The second was a letter dated 21 October 2005 from the Applicant's planner Mr T. C. Radisich. Both of these letters expressed support for the proposal. However, interestingly, the letter of 21 October 2005 from Mr Radisich does recommend that the Applicants seek written consent from Council for the northern edge of the proposed new dwelling being able to extend outside of the building envelope prescribed in the s.173 agreement No. R623053E.

13 By contrast, Ms Sokolovski apparently takes the broader view that the text of paragraph 1.2 of the s.173 agreement No. R623053E gives Council the discretion to both allow development outside of any relevant building envelope, but also a discretion to (despite the "Advanced Ridge Estate Stage 1" plan) allow more than one dwelling on any one relevant lot.

14 In setting out my findings, my approach has been to start with a more straightforward point, and then finish with the more complex ones.

15 The starting point here is that it is true that the other nearby properties on the north side of Nettle Drive have a uniform characteristic of featuring a single dwelling on the lot plus some degree of open back yard. This in practice provides some degree of buffering between each of these dwellings and the Eastern freeway which lies further to the north.

16 Ms Cincotta on behalf of Council put forward the view that it would be contrary to this neighbourhood character for a second dwelling to be built on the rear subject land (this was disputed by Ms Papp).

17 My own findings here are that I do not see any basis for refusing the proposal simply on the basis of these "neighbourhood character" concerns. Whilst it may be true that this would be the first example in this particular locality of a rear second dwelling, I do not see this as enough in itself to justify a refusal. Rather, the issue here seems whether the design approach is satisfactory and whether the proposed new rear dwelling is sufficiently respectful of and will reasonably blend in with the locality.

18 Looking at the private open space that will be available if the proposal went ahead, the new rear dwelling would have a north-facing backyard and would have a good amount of private open space (ie. over 40 square metres).

19 By contrast, the private open space area for the front dwelling would (if one concentrates on the main useable area) be about 26 to 27 square metres in size. In addition, the actual area available for day to day use would be closer to 20 square metres if one factors in the need to allow space for a clothes line that will get adequate sunlight over the course of the day.

20 In summary, in terms of whether the proposal offers adequate internal amenity for the occupants of the front dwelling, I see the area available for private open space for this front dwelling to be quite tight/marginal. This in turn reflects the fact that the subject land (at 568 square metres) is more an average rather than a generous sized lot to try to convert into a dual occupancy.

21 Whilst I would not see these private open space concerns as being a "knock out blow" to the proposal, they do raise real "internal amenity" issues which count against the proposal.

22 I make the point here that the level of noise that would be experienced in any one lot is a subjective issue. In other words, what may constitute an annoying level of noise for some occupiers, may not disturb other occupiers unduly. In this regard, we therefore need to keep in mind that even if Ms Papp indicated that she hardly notices the freeway noise, it is possible that the future occupier of any new rear dwelling may take a different approach to these noise issues.

23 At the hearing no formal noise evidence by any independent noise engineer was presented to me. This in turn meant that there was no opportunity for any such evidence to be tested by way of cross-examination.

24 In summary, I have major unresolved concerns about the potential noise issues associated with any new rear dwelling on the subject land. The situation here is exacerbated by the fact that the proposed new rear unit would extend to within 1.5 metres of the rear boundary (with the eastern freeway lying on the other side), plus I do not have the benefit of any independent expert noise evidence at the hearing.

25 I think common sense indicates that a cautious approach needs to be taken for this type of lot so close to a major freeway, in terms of assessing the noise implications of how any proposed development of the existing backyard area should be developed. Put another way, there seems a strong case that any development of the backyard of the subject land for a second dwelling would be inappropriate unless a convincing and objective case has been put forward that such development could proceed without any unreasonable noise risks involved for the future occupiers. This would involve not only assessing the noise situation inside any proposed rear dwelling, but also assessing whether the use of the proposed private open space for any new rear dwelling will be unduly prejudiced by the freeway noise. For example, there may be a need for a noise attenuation wall of a significant height on the northern boundary, but this could in turn cause significant overshadowing issues.

26 I now turn to the key single issue in this matter, being the implications for the proposal of the 173 agreement No. R623053E. I have already set out above the key clauses in this agreement, being clauses 1.1 and 1.2.

27 Ms Cincotta on behalf of Council put to me that these two clauses involve separate and stand-alone requirements. Following her thinking, even if the proposal satisfied cl.1.2, the proposal still fails the separate requirement under cl.1.1. In other words, Ms Cincotta urged me to find that the "Advance Ridge Estate Stage 1" Plan annexed to the agreement provides that only 1 dwelling can ever be built on the subject land, unless the 173 agreement itself is varied in the future.

28 While I accept that there is a strong case that clauses 1.1 and 1.2 are separate and stand-alone requirements, at the end of the day I consider that the proposal is in breach of the 173 agreement even if Ms Cincotta is wrong on this point. I say this because even if (following the Applicants' preferred view) Council has the ability under cl.1.2 to grant an exemption so as to allow any proposal to satisfy both clauses 1.1 and 1.2, the practical reality here is that Council has not granted any such exemption. In the absence of Council agreeing to co-operate in this regard, it seems to me that there is no possible conclusion other than that the proposal will breach this 173 agreement No. R623053E. In this regard, I note that not only is a second dwelling per se proposed on a lot which the "Advance Ridge Estate Stage 1" Plan shows as having only a single building envelope, but the proposed second dwelling will also extend outside of the building envelope area.

29 I also note in passing that I found the two letters provided by the Applicant (ie. the letters from Ms Sokolovski and Mr Radisich) to be largely unhelpful in relation to interpreting Clauses 1.1 and 1.2 of the. 173 agreement No. R623053E. In particular, I make the point here that Ms Sokolovski's preferred approach of some how merging the interpretation of the R623053E 173 agreement and the private restrictive covenant is fundamentally flawed and misguided. The correct approach here is that these are quite different documents and each needs to be interpreted and applied separately.

30 In summary, I am satisfied that the proposal will breach the key 173 agreement No. R623053E, and hence I uphold Council's Notice of Refusal to Grant a Permit which simply relied on this breach.

31 It is clear under the relevant statutory provisions that (in making my decision here) on the one hand I must have regard to the role of the 173 agreement No. 623053E[1], but on the other hand I am not automatically required to reject the proposal even if that 173 agreement would be breached by the proposal[2]. However, in terms of the exercise of my discretion, this situation indicates to me that a very cautious approach needs to be taken before any proposal deserves to be approved which would breach a 173 agreement.

32 I agree with the comment by Member Komesaroff in Salerno v Maribyrnong City Council [2001] VCAT 762 that the likely breach of a 173 agreement by a proposal is a "fundamental matter". The main situation I can think of where I might still at least consider approving a proposal which would breach a 173 agreement is where the proposal has strong planning merits and where there is a strong case that the circumstances in question make the 173 agreement redundant/superseded.

33 In reviewing the proposal before me here, I do not see either of these benchmarks as being satisfied. That is, for the reasons indicated above, I think there are some major planning problems associated with the proposed second dwelling, and I do not accept that the 173 agreement No. R623053E has been made redundant by the circumstances here.

34 In conclusion, it is appropriate that I affirm Council's Notice of Refusal to Grant a Permit, and no permit shall issue.

[1] See Section 84B(1)(g) of the Planning and Environment Act 1987

[2] The situation with a 173 agreement can be contrasted with a proposal that will breach a private restrictive covenant, where Section 61(4) prohibits the issuing of a permit that would breach such a covenant