1 The application for review P493/2003 is disallowed. No permit is to issue.

2 The application for review P494/2003 is disallowed. No permit is to issue.

1 Application P493/2003 is an application for review of the failure of the Responsible Authority to grant a permit for variation of the registered restrictive covenant contained in Instrument of Transfer No 1407434 dated 28 March 1929 to allow for 4 dwellings on 1 Newhall Avenue, Moonee Ponds.

2 In relation to this application the Responsible Authority indicated that it had formed an opinion that if it was in a position to determine the application it would have refused it on the following grounds:

The proposed covenant removal does not satisfy the requirements of Section 60(5) of the Planning and Environment Act in that Council is not satisfied that the owners of benefiting land will be unlikely to suffer any detriment of any kind as a consequence of the removal of the restriction and that the Council is satisfied that the objections by those owners are not vexatious or made in bad faith.

3 Application P494/2003 is an application for review of the failure of the Responsible Authority to grant a permit for 4 dwellings on land at 1 Newhall Avenue, Moonee Ponds.

4 In relation to this application the Responsible Authority indicated that it had formed the opinion that if it was in a position to determine the application it would have refused it on the following grounds:

1. The development fails to meet the objectives and standards of Clause 55 of the Moonee Valley Planning Scheme.

2. The proposal is not consistent with the existing or preferred neighbourhood character of the area and fails to satisfy the Residential Design Provisions of Clauses 22.06-9 and 55.02 of the Moonee Valley Planning Scheme.

3. The proposal represents an unacceptable level of bulk and scale on the land and to the surrounding area, particularly in terms of the impacts of the proposal on adjoining rear yard areas.

4. The proposal is an overdevelopment of the site.

5. The proposal has failed to provide adequate car parking facilities.

5 The subject site is described as having an overall area of 862.4m² with a frontage to Newhall Avenue of 16.15m and a depth of 53.34m. A single storey dwelling and several outbuildings are currently located on the site. The dwelling is setback 8.3m from the front boundary.

6 A 3.6m right of way runs along the northern boundary of the site and to the immediate north of the right of way is a large public car park which is located at the rear of commercial development that fronts Holmes Road.

7 To the west and south of the site are residential properties fronting Newhall Avenue. They are single storey period style dwellings constructed through the late 1920s and 1930s with the exception of a double storey block of 12 flats, developed in 1965.

8 The subject site is in close proximity to the Moonee Ponds Activity Centre and to a wide range of community services and facilities.

9 The subject site is located within the Residential 1 zone (Clause 32.01) under the Moonee Valley Planing Scheme as are the adjoining residential properties to the south, east and west. The commercial properties to the north are located in the Business 2 zone.

10 A permit is required under Clause 32.01-4 to construct two or more dwellings on a lot. A permit is also required under Clause 52.02 to vary a restriction.

11 It is proposed to vary the covenant registered on Certificate of Title Volume 6522 Folio 296. The relevant part of the registered restrictive covenant contained in the instrument of Transfer No 1407434 is as follows:

...will not build or erect more than one dwelling house on the land hereby transferred and will not build any house thereon unless such house shall be constructed of brick concrete or stone and have a roof of slates or tiles and shall not cost less than One thousand two hundred pounds exclusive of architects fee and the cost of erecting outbuildings or fences and unless the plan of the outside of such house shall first have been approved of in writing by the said Elizabeth Learmonth or her transferees registered proprietor or proprietors of the said balance of the said land in the said Certificate of Title and will not use or allow to be used any building erected on the land hereby transferred for any purposes other than as a private dwelling house and as out-buildings in connection therewith.

12 The application was advertised to the beneficiaries of the covenant, nine objections were received by the Responsible Authority and of these 6 have lodged statements of grounds to this applications.

13 Section 60(5) Planning and Environment Act 1987 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) it that owner has objected to the grant of the permit, the objection is vexatious or not made in good faith.

14 The Tribunal was referred to a number of previous Tribunal decisions in relation to consideration of "detriment of any kind" referred to in Section 60(5) all of which indicate the severity of the test: Scuderi V Hume City Council (1998) 22 AATR 261 , Grisby & Ransom v City of Greater Geelong [1997] 21 AATR 11,Wilde v City of Moonee Valley 18 AATR 145, Bennett v Maroondah CC [2001] VCAT 2161 (7 November 2001).

15 Mr Hocking, who represented the beneficiaries, submitted the variation of the covenant to allow for the construction of four double storey dwellings on the land would disrupt the character of the neighbourhood of relatively intact single storey single interwar dwellings, result in an unattractive continuous built form when viewed from adjoining properties, as well as Newhall Avenue, resulting in a detrimental impact on the residential amenity of the beneficiaries. The beneficiaries also expressed concern that an increase in the number of dwellings on the land could result in an increase in traffic and impact on parking in Newhall Avenue.

16 It was Mr Hocking's submission that "the scale and form of the proposal and the lack of respect which it takes in regard to front setbacks, setbacks from side boundaries, built form, roof pitches and materials, wall heights and overall heights and landscape character is clearly contrary to the elements within Newhall Avenue itself".

17 Whilst Mr Ng submitted there was no beneficiary of the covenant that abutted the subject site, as well as referring to what he described as a major breach of the covenant with the development of the 12 flats, it remains that the Tribunal can only consider whether the particular covenant should be varied in this instance. It is not relevant that there have been considerable changes to planning policy since the inception of the covenant. A covenant is a private contract of rights and considerable weight must be given to the views expressed by the beneficiaries.

18 In the decision of the Tribunal in McFarlane v Greater Dandenong CC [2002] VCAT 469 (26 June 2002) distilled the following propositions referred to in Scuderi:

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 judgement, 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.

19 In light of the predominately consistent streetscape and intact residential character of the buildings in Newhall Avenue I can only but conclude that a dramatic change as is proposed will result in a dramatic change to the aesthetic nature of the area and as such is likely to have an impact on the amenity of the beneficiaries. I am therefore unable to conclude there will be no detriment of any kind. In such circumstances the application to vary the covenant is refused.

20 The proposal includes the demolition of the existing dwelling on the site and the construction of four double storey dwellings. Each unit is to contain three bedrooms. One unit is to have a frontage to Newhall Avenue whilst the remaining three units are to front the existing right of way. A total of eight vehicle spaces are to be provided.

21 The site is located within the Moonee Ponds Policy area, which recognises "the demolition of established homes and their replacement with inappropriately designed housing stock, may serve to undermine streetscape integrity and character of the suburb".

22 Unit one is to be setback 5.6m to 7.7m from the front boundary to Newhall Avenue at the ground floor level and 6.3m to 7.7m at first floor level. Setbacks generally in the street are between 8m and above. Although there is a reduced setback from the surrounding properties and the building is double storey, the proposed roof form and pitch is to be a combination of hipped and gable which fits well within the area.

23 Whilst the front unit has a side setback of 2.4m and 4.5m with a right of way to the north and a driveway to the south creating the element of gaps between buildings, an integral part of the streetscape when viewed from the right of way which is to be the main entry point of three of the units there is no resulting separation in a building form which extends along the whole of the site and is considered dominating.

24 When viewed from the direction of Holmes Road this site is at the entry point to the residential area contained in Newhall Avenue. It is considered the building will present as a rather dominating form when entering Newhall Avenue from this direction, even if it will only present as a single dwelling form when viewed from directly opposite the site.

25 Whilst some form of new residential type development may not be inappropriate on this site, an additional dwelling at the rear of the site could be readily incorporated, however the replacement of the existing dwelling which is in a form that predominates the streetscape with the dominating form of four dwellings does not it is considered achieve the objectives of the Moonee Ponds Residential Design Policy. The preferred character is described as retaining and maintaining streetscape character with any new development complementing the residential streetscape qualities and character. I am unable to reach the conclusion that what is proposed on the site will complement the residential streetscape qualities and character. Although there has been some attempt to complement the character with the roof form this is not considered sufficient to enable the new development to complement the existing streetscape character.

26 Nor is it considered the proposal "promotes the retention and protection of residential streetscape qualities and the refurbishment of existing housing stock".

27 It was submitted the proposal does not comply with a number of the standards of ResCode. Whilst individually non compliance may not be sufficient to refuse the application and in some instances appropriate conditions could be required that would overcome areas of non compliance, when viewed overall it is considered that the areas of non compliance, setback, overlooking, solar access to open spaces and particularly neighbourhood character all amount to an overall view that the proposal is an overdevelopment of the site and inappropriate in this location.

28 The application for the development of four double storey dwellings on the site is refused. No permit is to issue.