6 Multi-dwellings and variation of restrictive covenant.

The appeal site has a frontage to the northern side of Haddington Crescent of 31.89 metres, a minimum depth of 45 metres, and an overall area of 1485 square metres.

Under the Hume Planning Scheme, the appeal site and surrounds are zoned Reserved Living.

Mr Michael Nelthorpe, Town Planner, represented the Responsible Authority. He called Mr Terence Cerini, Valuer, to give expert evidence.

Mr Tony Radford, Barrister instructed by Caleandro Guastalegname, Solicitors, appeared for the applicant. He called Mr Peter Small, Town Planner of A T Cocks Consulting, to give expert evidence.

Mr P N Wikrama, Barrister, appeared for Ms Robyn Lavender, Mr Charlie Carabott and Mr Andrew Sherriff, all being objectors. He called each of those objectors to give evidence. He also called Mr Giovanni Gattini, Town Planner and Mr Tony Erriciello, Real Estate Agent, to give evidence.

Mr Scuderi is the owner of 15 Haddington Crescent, Greenvale, in the municipality of Hume. On 19 June 1997, he made application to the Responsible Authority for a Planning Permit for the use and development of the land for the purpose of six multi dwelling units. The Responsible Authority found that the development generally complied with all elements of the Good Design Guide and after consideration of other matters including the grounds of objection taken by 34 objectors determined to grant a permit. Accordingly, on 20 October 1997, the Responsible Authority granted Mr Scuderi's application. In the first appeal, the objectors sought a review of this decision. Since this proposal offended a restrictive covenant over the land Mr Scuderi, on 20 October 1997, made application to the Responsible Authority to vary the covenant so as to permit the development. On 16 December 1997, the Responsible Authority refused to do so having found that persons who benefit from the covenant have established they will suffer a material detriment should the covenant be varied as proposed. Mr Scuderi has appealed this decision. For convenience, the Tribunal heard both appeals concurrently.

1. After council advertising (for a building permit to develop 6 multi unit dwellings on proposed site at No 15 Haddington Crescent Greenvale) a total of 34 objections were received by the council from neighbouring residents.

2. Proposed multi unit dwellings (6 units) at No 15 Haddington Crescent Greenvale do not fit in with existing housing (dwellings) in the street - existing housing (dwellings) are of a single (one) dwelling per block of approx 30 squares and larger (also there are many existing dwellings of a much larger size which currently exist in the street).

3. An incident which occurred outside the front of Greenvale Catholic Primary School on Monday the 3rd of November 1997, highlights the problem with street traffic and street parking that exists when parents park in the street (in front of the school) to drop off and pick up school children at the school, in the morning and afternoon of every school day of the week:

On the 3rd of November approx. 3.30 pm in the afternoon, a child was run over by a car when the child ran out onto the street from between parked cars in the street - an ambulance, police car and police helicopter attended the accident scene.

The proposed multi unit dwelling (6 units) site (block) is located directly opposite this school and directly opposite a "T" intersection (Murray Court and Haddington Crescent).

4. LAND SIZE - there appears to be a discrepancy between my certificate of title which shows the proposed development site to be 1485m2 and the council report No CD113 which shows the proposed development site as 1517m2. Even though this appears to be a small variation, I am concerned about what effect this will have on the proposed layout with respect to the trees at the rear of the property, the depth of the frontage and overall proposed plan of the site.

5. Council report CD113 makes mention of a large multi unit development at the rear of the proposed site when in fact behind the property is single dwellings. Opposite these single dwellings are multi storey units. These units were always shown on developers site plans as a unit development.

6. A covenant exists on the proposed site which states single dwelling of not less than 150 sq. metres of living are. , Properties in area were purchased on pretence that a covenant exists which restricts this proposed type of development. Residents purchased these properties knowing that large type housing could be built with adequate space between dwellings for privacy.

7. I am concerned about possible increase in noise level of proposed site due to the 6 dwellings on the one block. The position of the proposed driveway on this site will be directly in line with the "T" intersection of Murray Court and Haddington Crescent which could cause possible traffic problems.

8. I believe that the council has not listened to residents concerns when they objected to the development of the proposed site - (34 resident objections).

9. Other grounds of appeal will be brought to the attention of the tribunal, when the known date is set for the appeal hearing, as I am still waiting on confirmation from my solicitor/town planner.

1. Mr Nelthorpe provided a description of the developing residential suburb of Greenvale. It is located some 20 kms to the north of the Central Business District. Somewhat unusually, the suburb is generally surrounded by non urban land or land included in open space reservations. The submission included:

"The suburb of Greenvale has been developed in the 1980's and 1990's. The planning for subdivision of much of the land occurred in the 1980's and is notable by the pattern of lots of 4000m2 plus in areas north of the subject site (notably around Elphinstone Boulevard), lots of between 2000m2 - 4000m2 in areas south of the subject site (around Drummond Street) and 1000m2 lots in numerous other parts of the suburb.

The housing styles of Greenvale reflect their era and the range of lot sizes available. Houses in the precinct south of the subject site are quite large (30-60 squares) and in garden settings. Front setbacks are deep and rear yards are generally large.

Greenvale is reasonably supplied with community and commercial facilities although, like the suburb, these are also newly developed. There are two primary schools, a neighbourhood shopping centre and a recreation centre. There are a number of large suburban parks in early stages of development and numerous open space links along the minor creeks which run through the suburb."

2. The neighbourhood immediately around the appeal site is characterised by lots in excess of 1,000 sq. metres in area which are developed with detached single and double storey houses of ample proportions. Generally, those houses occupy almost the full width of the lots. Mr Nelthorpe described many of these dwellings as "ranch style", but a variety of architectural styles exists. Most of the dwellings make stylistic references to earlier eras, such as Mr Sherriff's Victorian villa to the west of the appeal site. Other styles include Georgian, mock Tudor, Federation, and modern.

3. The subject land is a flat vacant allotment. It supports no vegetation of note except a line of tall eucalypts running parallel to the rear or northern boundary of the site, some two metres inside that boundary. To the north of the site is an undeveloped public walkway which extends along the rear of the lots fronting Haddington Crescent, for a total length of one kilometre. It divides the appeal site from a precinct of small lot subdivisions and two multi unit housing developments. The right of way is nine metres in width.

4. The lots to the east and west of the appeal site are each developed with one single storey dwelling. Mr Carabott's dwelling to the east is set on a 1463 sq metre lot. It is a single storey brick dwelling, located six metres from the site's frontage and 1.2 metres from the common boundary. The fence on the common boundary with the appeal site is a two metre high wire mesh fence. Mr Sherriff's dwelling to the west occupies a 1440 sq metre lot. It is set back 8.5 metres from the frontage and four metres from the common boundary. A standard height paling fence exists along that boundary.

5. Diagonally opposite the appeal site to the south-west is a Catholic primary school with some 300 students. Other land on the southern side of Haddington Crescent is in residential use.

6. Haddington Crescent itself carries in the order of 760 vehicles per day. It forms part of a circuitous network of local streets to the south of Barrymore Road. It was Mr Gattini's uncontradicted evidence that Haddington Crescent is designed to carry in the order of 2000 vehicles per day. The appeal site is located directly to the north of the `T'-intersection of Haddington Crescent and Murray Court.

7. The proposal is for the construction of six single storey houses. Four of these are attached, and the front two dwellings are detached by a distance of less than 0.5 metre, from the dwellings to the rear. The floor areas of the dwellings range from 85 - 123 sq. metres, and each would have a private open space area of more than 40 sq metres . For Units 1 and 6 (the front two units), part of this private outdoor area would be created by fencing off the western and eastern extremities of the frontage set back. A 4.5 metre length of fence set back two metres from the frontage would be constructed on either end of the site. Vehicular access to the appeal site would be via a central street crossover and in turn a driveway located centrally to the lot. Each unit would be provided with a single garage and tandem parking space.

8. The front dwellings would be generally set back six metres from the frontage, and 1.2 metres from the adjacent side boundaries, except that the garage for each of these units, in common with the garages of the other four units, would be constructed on the boundaries. A pair of garages would be located on each of the northern, eastern and western boundaries of the site. The two mid block dwellings would be set back close to four metres from the eastern and western boundaries. The rear dwellings would be set back 1.2 metres from the eastern and western boundaries, and generally in excess of three metres from the northern boundary.

9. The architectural style of the proposed dwellings is unexceptional, and features details of earlier eras, such as bay windows. The dwellings would be constructed of face brick work and have tiled roofs. The driveway would be constructed of coloured concrete. A 1.8 metre high brick pier and metal railing fence is proposed at the frontage around the open space areas for Units 1 and 6. Otherwise the frontage to the site will remain unfenced.

10. Indicative landscaping is shown on the plans lodged with the application. The plan indicates that the landscaping proposed principally comprises native shrubs of between one and three metres in height. While the landscaping legend includes numerous trees of between five and 20 metres in height, the plan itself shows no locations where those trees are to be planted. The development plan suggests that, at best, one of the eucalypts at the rear of the site would be retained. In place of the eucalypts removed, a species of melaleuca growing to three metres high would be planted. No planting would of course occur where the garages extend to the rear boundary.

11. The unit to site area ratio of the completed development would be 1:247 sq metres. The site coverage proposed is some 48 percent.

12. Planning permission is required to use land in the Reserved Living Zone of the Hume Planning Scheme for the purpose of multi dwellings. We have also noted, that under the proposed Victoria Planning Provisions-based Scheme for the municipality, this use remains discretionary in the Residential 1 Zone which is proposed to apply to the site.

13. Clause 16-2 of the current scheme generally guides the exercise of this discretion. It includes that the responsible authority, and hence the Tribunal on appeal, must have regard to a number of matters. Those of relevance here include State, regional and local planning policies, the purpose of the zone, the orderly planning of the area and the effect of the proposal on the amenity of the neighbourhood.

14. The Reserved Living Zone has a number of specified purposes, including:

* To ensure that if land is used for a residential building, dual occupancy or a multi unit development, adequate provision is made for daylight, privacy and landscaping and that the amenity of the occupants of adjoining land is not impaired."

15. Policies relevant to the issues in this appeal are those included at Clause 3-3 of the State Section of the Planning Scheme, and Clause 14-2 of the Regional Section. They generally support an increased variety and density of housing throughout the metropolitan area as a component of urban consolidation. Local policy relevant to this application is included at Clause 103-3 of the Scheme. That clause provides insofar as is relevant here that it is policy "to retain the high quality character and environment of Greenvale ..."

16. Mr Nelthorpe advised that the local policy derived from Greenvale and Attwood Strategy Plan - Towards 2000 of June 1993. The plan had been adopted by the then Shire of Bulla. The urban form and character objectives outlined in the plan are:

"To visually unify the residential areas of Greenvale and Attwood and the future employment areas and areas of open space which comprise the area. To establish and maintain a strong image to the urban edges and within the urban areas that is compatible with the theme City Living/Country Style_._

To enhance the appearance of future employment areas, Greenvale Shopping Centre and main road corridors." [Tribunal emphasis].

17. Mr Gattini asserted that the relatively small size of Greenvale and Attwood would influence the extent to which new services and facilities are able to be provided beyond those limited facilities which exist in the locality at present and good planning practice would suggest that it is inappropriate to encourage more intensive housing development in the locality. We were unable to find any expression of this in any existing policy.

18. Clause 21 of the Planning Scheme is also relevant to the application. It has for some time required that proposed multi unit developments be assessed against the element objectives, criteria and techniques of the Good Design Guide for Medium Density Housing of August 1997. It also has required that a site analysis and written statement describing how the proposal responds to the site's features is to be submitted with the application.

19. In the course of the appeal hearing, the approval of Amendment SR4 to the planning scheme was brought to our attention. That amendment was introduced on the 1 May 1998, and modified Clause 21. Clause 21 now requires that responsible authorities must certify the adequacy of site analyses. However, the amended Clause 21 nevertheless indicates that this requirement does not apply to applications, such as the one before us, lodged with a responsible authority prior to the 30th of April 1998.

20. Upon receipt of the application, the responsible authority required it to be advertised and in response 34 objections were received. The officer's report to the Council meeting of the 20th of October 1997 summarised the grounds of objection. These related to decreased property values, increased traffic, the removal of trees, consistency with the character of the existing street, and the effects of the restrictive covenant. A notice of decision was issued on the 21st of October 1997, and the objectors lodged an appeal on the grounds earlier listed on the 6th of November 1997.

21. The approach commonly adopted by the Tribunal in the assessment of multi unit applications is to examine the relationship of the proposal to policy; to assess its off-site amenity impacts, including upon the character of the neighbourhood, and the more direct effects for immediate neighbours; and to examine the liveability of the new dwellings. Having regard to the balance of these factors, we have determined that this objectors' appeal should be allowed. It is our view that the proposal is too intensive a development of the site, leading to an inconsistency with neighbourhood character and inadequate levels of on-site amenity. Our particular reasons for this view are as follows.

22. As was stated in the recent determination of Appeal 1997/47741 Australand Holdings Pty Ltd v City of Boroondara and Crow and Others (editorialised in 21AATR 8), the planning policy of urban consolidation is not a trivial one : it brings benefit at the broader metropolitan level as well as to local neighbourhoods. Local area benefits flowing from the creation of a more heterogeneous population and the arrest of a decline in population either now or in future, include providing economic support for local shopping centres, the establishment of new businesses providing services to the local community, the creation of local employment, the provision of a more stable catchment for schools, kindergartens and the like.

23. Thus it might be said that any proposal for a multi unit development on a lot otherwise designated for single dwelling use is one consistent with planning policy. However, the State and regional policies do not support urban consolidation at any cost. Elements of the policy require that more intensive housing development occurs in a manner which is complementary to the character of its neighbourhood, and must provide adequate levels of both on- and off-site amenity. It is in respect of these latter matters that we believe this proposal fails.

24. While we accept the responsible authority's view that when seen directly from the street frontage, the development would appear for the most part similar to the large "ranch style" dwellings of the locality, nevertheless the intensity of development on the site as a whole, and in particular the extent of on-boundary and near-boundary development, in the context of this neighbourhood, is excessive. In particular, we believe that an uninterrupted line of single storey development extending 40 metres along the allotment side boundaries, and across almost 30 metres of the rear of the site, will be perceived by immediate neighbours, by persons using the rear public walkway, by persons in Murray Court to the south, and to the south - west in Haddington Crescent, as an intensity of development uncharacteristic of this neighbourhood.

25. We also believe that the fencing of open space within the front set back area also is unacceptable in terms of neighbourhood character: there is an absence of front fencing in the immediate locality. While the length of fencing proposed is not great, the fenced areas would nevertheless be quite prominent as they would sit forward of the common dwellings on abutting allotments.

26. Further we agree with Mr Gattini's submission that the open space areas are too small for trees with spreading crowns to be successfully incorporated. We believe that the inclusion of trees of this kind is appropriate, because even though Greenvale is a relatively new area, there are already signs of the suburb honouring its name.

27. In related fashion, we believe that the loss of trees along the northern boundary would be a significant disadvantage for the area. Those trees provide some interpretation of prior uses of the land, being remnant farm trees, and they denote the existence of the right of way at the rear of properties in this neighbourhood. There was no contradiction of Mr Gattini's advice that the trees were in good health and could be retained.

28. In these respects we note that the actions listed at Clause 4.3 of the Greenvale and Attwood Strategy Plan include the establishment of a full inventory of significant small scale environmental features with a view to ensuring that proper consideration is given to incorporating those features into the urban fabric. Also, the urban form and character section of that strategy includes:

"Greenvale is developed as a low density neighbourhood with large lots and, in some parts, generous exotic street tree planting."

"The city living-country style theme will be enhanced in Greenvale and Attwood by the development of planting themes that will better relate the various urban elements as they are developed."

It is particularly inappropriate in our view to remove the existing trees elements which form part of a ready-made planting "theme" for the locality.

29. It is clear that the proposed development will generate additional on-street traffic above that which might be generated by a single dwelling on the land. This could be in the order of 50 vehicle movements per day. However, we see no road capacity problems arising from this. Nor indeed did Mr Gattini.

30. Nor do we see any problems arising from the fact that Murray Court is directly opposite the accessway to the subject land. While the Tribunal has in the past been concerned about the creation of a "cross street" under similar arrangements, Murray Court is a small cul de sac servicing approximately 20 allotments. In these circumstances, movement out of Murray Court directly into the subject land, and vice versa would be unlikely to ever occur.

31. Further, while Mr Sherriff was concerned about increased pressures for on-street parking by visitors to the proposed units, we do not believe that this would be a significant problem having regard to the fact that the proposed development would provide two spaces per dwelling, in excess of the Good Design Guide requirement of 1.5 spaces per dwelling.

32. We also record here that we do not believe that overlooking from the proposed development to surrounding properties would occur, and the overshadowing diagrams which have been provided satisfy us that there would be no unreasonable overshadowing.

33. The failings of the proposed development in terms of the on-site amenity that it would offer future occupants of the dwellings, is the second reason that we believe the proposal should fail. Of particular concern are the following matters.

* The reversing areas for the garages for Units 2, 3, 4 and 5 are extremely constrained: they barely meet Element 8 Technique 4 of the Good Design Guide which requires an internal radius at points of change of direction of driveways of at least four metres. Conflict would likely occur with any overhang by planting proposed in the front of Units 2 and 5, unless vehicle turns were executed with great precision.

* Compliance with the Good Design Guide requirement for 1.5 car spaces per dwelling is only achieved by the provision of 6 tandem car parking spaces. Tandem parking has obvious workability limitations. It can be accepted where there are particular site constraints, but on this new site it is an indication of overdevelopment.

* The manoeuvring of vehicles at the northern end of the site would disturb abutting dwellings, as bedrooms 1 and 2 of Units 2 and 5 are located adjacent to the vehicle accessways and tandem car parking spaces for Units 3 and 4. The bedroom 2 window, for example, would be only 2 metres away from the rear of the tandem car space for the abutting unit. The proposed bedroom 1 windows are less than 1 metre from parts of the accessways which would necessarily be used for reversing.

* The tandem car parking spaces for the garages for Units 1 and 6 directly abut the bedroom 3 walls. These might be treated to avoid noise disturbance, but essentially the arrangement is undesirable.

* The open space provision for Unit 1 is in our view inadequate for a three bedroom dwelling. The open space for that unit is provided in two parts linked by the 1.2 metre wide set back to the western boundary. The private portion of the open space has only limited dimensions - that is between two and three metres in north-south extent and seven metres from east to west. Part of that open space area is allocated to clothes drying. That open space will be significantly overshadowed by the garage located to the north. Element 6 Technique 9 of the Good Design Guide would recommend that the minimum north-south dimension of that open space should be 5.4 metres, assuming a garage wall height of 3.6 metres.

Similarly the open space to the south of Units 1 and 6 would be substantially overshadowed, as would the northern portions of the open space for Units 2 and 5.

* Some of the proposed bedrooms have dimensions which would limit the arrangement of furniture in those rooms. There are four bedrooms which are less than 3 metres in width.

* The development fails to meet the Good Design Guide's requirement for a sense of address or identity for the dwellings. The rear units - Units 3 and 4 are accessed by a route which "dog legs" around the corner of bedroom 1 of Units 2 and 5, to the entrance to the porch immediately beside a tandem car parking space.

The mode of entry to those rear units is such that the privacy of bedroom 2 to Units 2 and 5 would also be compromised, as the porch entry for the units is immediately outside the bedroom 2 windows for the abutting units.

* The two rear units have internal bathrooms devoid of natural light.

34. It is a combination of all of these on-site design failings, together with the relationship of the development to neighbourhood character, which have led us to the view that the application for permit should be refused and the appeal is therefore allowed.

1. The retention of the restrictive covenant serves no purpose in that it stifles the achieving of Government policy in terms of urban consolidation.

2. The change to the covenant will allow a use and development to proceed which is consistent with the orderly and proper planning of the area and contributes toward the objectives of urban consolidation. Any proposed use and development of the site which can occur as a consequence of the covenant being varied will be adequately controlled by the Good Design Guide for Medium Density Housing and the balance of the Planning Scheme provisions.

3. There is no practical benefit to be achieved by the retention of the existing covenant.

4. The variation to the covenant will not cause a detrimental impact upon the amenity of adjoining properties.

5. The variation to the covenant will allow for the reasonable use and development of the land to occur.

6. The variation to the covenant does not set an undesirable precedent for the area.

35. The covenant was registered upon the title of the land on 7 October 1988 and is in the following terms :

with the intent that the benefit of this Covenant shall be attached to and run at law and in equity with each and every lot on Plan of Subdivision No 207627R (other than the lot hereby transferred) and that the burden thereof shall be annexed to and run at law and in equity with the lot hereby transferred hereby for himself and for his heirs, executors and administrators and transferees covenants with THEMROCK PTY LTD and its transferees the registered proprietor or proprietors for the time being of each and every lot in Plan of Subdivision No 207627R and every part or parts thereof (other than the lot hereby transferred) that the said

his heirs, executors, administrators and transferees shall not :-

(a) at any time erect, construct or build or cause to be erected, constructed or built or allowed to remain erected, constructed or built on the said lot sold or any part thereof any building apart from the necessary outhouses and garages other than a dwelling house constructed of brick veneer or stone;

(b) erect or cause to be erected on the said lot hereby sold any dwelling (excluding necessary outhouses and garages) that shall have an area of less than 150 square metres.

AND IT IS INTENDED that the above covenants shall appear as an encumbrance on the Certificate of Title to issue in respect of the said land and run with the land hereby transferred".

36. The Appellant/Applicant proposed that the covenant be varied by adding :

"(c) provided that the said covenant shall not be deemed to be contravened by the erection on the said lot of six single storey dwellings"

37. The objectors were the residents in 27 properties in the vicinity. Of these property holders, 13 properties enjoy the benefit of the covenant. However, before the Tribunal, one such property owner, namely, Mr Vella, whose property benefits from the covenant withdrew his objection.

38. An analysis of the material contained in the written objections discloses that the grounds relied upon are :

39. Counsel for the objectors, Mr Wikrama, called three objectors, namely, Mr Sherriff, Mr Carabott and Mrs Lavender, all of whom were the proprietors of properties benefited by the covenant. The two gentlemen occupy properties abutting the land upon which the applicant proposes to construct the units while Mrs Lavender lives across the road. Messrs Sherriff and Carabott both said they knew of the existence of the covenant before they purchased the lot and because their purpose was to move into a neighbourhood where only one house was constructed on relatively large allotments, they drew comfort from the existence of the covenant. Mr Sherriff went further and said that if the covenant were removed and the units were constructed he would move to another area. Mrs Lavender said that she was looking for a large block and that she regarded the Greenvale location as prestigious. She felt that if the covenant were removed the effect would snowball and that the area would lose prestige.

40. Two witnesses were called who deposed as to the diminution in value of properties within the area if the covenant was amended as proposed. Firstly, Mr Tony Erriciello, a real estate agent, called on behalf of the objectors, said that if two or more houses were constructed on blocks within the area, it would have a detrimental effect upon neighbouring properties by reducing their market value. It was his view that 90% of prospective purchasers, in his experience of eight years selling lots in the Greenvale area, did so to acquire large holdings free of unit development. He was challenged on the basis that he was not a valuer. The Responsible Authority called its valuer Mr Cerini who expressed the opinion that :

"The proposal is likely to cause financial loss to the owners of land benefited by the restrictive covenant, and more particularly the owners of the adjoining properties".

41. The City of Hume resolved not to modify the covenant imposed upon Mr Scuderi's land because it was satisfied that should it do so those persons entitled to the benefit of a covenant would suffer material detriment. That is a positive finding and moreover one of prospective material detriment. However, given that the covenant was registered prior to 25 June 1991, the relevant provision is s.60(5) of the Planning and Environment Act 1987 and it is in the following terms :

"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".

42. This provision provides that the requisite standard of satisfaction to be held by the Responsible Authority (and hence this Tribunal) before any modification to the covenant can be imposed is a very high one indeed. This is to be appreciated given the nature of a restrictive covenant to which this Tribunal referred in M Grisby and R Sansom v City of Greater Geelong Crosbie & Ors 21 AATR 11 at pp.15 and 16 where the Tribunal held :

"It is necessary now to say something as to the nature of restrictive covenants. We take the liberty of quoting what the Tribunal (M.F. Macnamara) said in Dunstone v City of Manningham 13 December 1996 :

`Restrictive covenants have been acknowledged relatively recently in the history of land law as being equitable interests in land. The covenant constitutes an interest which exists in the land in relation to which it was granted. The interest is owned by the owner of the land for whose benefit the covenant was granted. See Tulk v Moxhay (1848) 2 Ph 774; 41 Er 1143. To be recognised as a restrictive covenant, the covenant must be negative in nature, Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403; Bradbrook MacCallum and Moore, Australian Real Property Law Paragraph [17.08]. As Bradbrook MacCallum and Moore note

`As in the case of easements ..., there must be both burdened and benefited land before equity will enforce a restrictive covenant'.

The typical instance of a restrictive covenant is one in which a vendor sells Blackacre but retains ownership of Whiteacre, obtaining in the transfer or conveyance a covenant from the purchaser on behalf of himself and his successors as owners of Blackacre for the benefit of the vendor and the vendor's successors as owners of Whiteacre restricting the use which may be made of Blackacre. The doctrines as to restrictive covenants which render them enforceable in equity against successors in title and not merely the immediate contracting parties, apply only where the covenant is negative and touches and concerns the land. Section 79 of the Property Law Act 1958 creates a presumption that a covenant of this type is intended to be made by an owner for himself and his successors in title to the land.

Section 88 of the Transfer of Land Act 1958 authorises the Registrar of Title to enter restrictive covenants of this sort as encumbrances upon the title to the land to which the restriction relates - the burdened land'.

It will be seen that restrictive covenants are created by the law of contract and the principles of equity. They provide the possibility for a system of private land use planning. Where covenants are introduced throughout a subdivision they have sometimes been described as operating there as a `local law'. Variation or release of covenants have traditionally been within the jurisdiction of the Supreme Court (see Section 84 of the Property Law Act 1958) rather than being part of or subject to public planning law. They were brought under the ambit of the public planning law for the first time in Victoria by what is now Section 60(2) of the Planning and Environment Act 1987 which we have already quoted. That section came into effect on the 25th of June 1991".

43. In 1993, the Planning and Environment (Amendment) Act enacted sub-sections (4) and (5) of s.60 which had the object of tightening the statutory regime in relation to the modification of restrictive covenants entered into before 25 June 1991. We refer to the Second Reading Speech of the Minister for Planning, Mr Maclellan, when introducing these amendments 11 November 1993, when he said :

"In relation to covenants, or title restrictions, in place before 25 June 1991, Clause 15 ensures that permits are not granted to remove or vary those covenants unless any owner of land benefiting from the covenant will not suffer detriment of any type and unless any objection by an owner is not brought in good faith. That tightens the provision in relation to covenants in place before that date when Section 60(2) of the principal Act commenced.

The effect of the clause is that permits should be granted only for `dead wood' covenants if no owner benefiting from the covenant objects to its removal or variation. The alternative avenue is to remove or vary a covenant remaining in place, being application to the Supreme Court under the Property Law Act 1958 and the preparation of a planning scheme amendment. In relation to covenants in place on or after 25 June 1991, the provisions of Section 60(2) will continue to apply".

44. A comparison of s.60(2) of the Planning and Environment Act 1987 and s.84 of the Property Law Act on the one hand and s.60(5) of the Planning and Environment Act (as amended) serves to highlight this historical background.

45. The introduction into s.60(5)(a) of the adjective "perceived" has led to a discussion of its force and effect in a number of decisions before the Tribunal. These decisions commence with that of Dennis Marsden Subdivision Services Pty Ltd v City of Heidelberg and Gillon & Others (1994) 13 AATR 7, Frenchville Pty Ltd v City of Boroondara and Others (unreported Appeal No 1994/38516) in which Deputy President Ball declined to follow the previous decision being that of Mr Marsden Member, N J Wilde v City of Moonee Valley B McKay and Others (1996) 18 AATR p. 145 in which Deputy President Byard lent towards the approach in Marsden (see p.159) while later in Grisby and Sansom v City of Geelong and Others (1997) 21 AATR p.11 Deputy President Macnamara expressed preference for the approach adopted by the Tribunal in Frenchville. These passages are no more than an attempt to find meaning for the expression contained in parenthesis in s.60(5)(a) "including any perceived detriment". This is not surprising because the word "perceived" connotes a subjective imputation and we note that the following dictionaries define the meaning of the word "perceive" as :

Macquarie Dictionary : "1. to gain knowledge of through one of the senses; discover by seeing, hearing, etc. 2. to apprehend with the mind; understand".

Webster Twentieth Century Second Edition : "take heed of, to grasp mentally, .... the awareness of objects or other data through the medium of the senses".

Oxford English Dictionary : "to take in or apprehend with the mind, to become aware or conscious of, to comprehend to understand".

46. The word "perceived" means a phenomena whereby sensory perceptions reach a conclusion based upon existing circumstances. Whether this conclusion is attained by employment of bodily senses - sight, smell, touch, hearing or by a process of intellectual assimilation and evaluation it matters not. To that extent, the phenomena is abstract. The conclusion may be based wholly or in part on existing facts and also upon prospective facts.

47. In Frenchville at p.6 the Tribunal referred to the submission of the solicitor for the Responsible Authority in which he put the proposition that "perceived detriment, being a detriment that a person can become aware of by sight ..." and at p.7 "the test is s.60(5)(a) is subjective, although it is open to the Tribunal to find that it is unlikely that any detriment of any kind (including any perceived detriment) will be suffered, even though such may be asserted by a party".

48. The Tribunal accepted this test. This submission does not accurately state the position. It is for the Responsible Authority to be satisfied that no detriment of any kind (including perceived detriment) results from the modification or abandonment of the restrictive covenant. Evidence may be led on behalf of the beneficiaries of the covenant as to the detriment they will suffer. The fact that such evidence is led of itself, does not constrain the Responsible Authority in determining whether or not a detriment is likely to result. The Responsible Authority may find that the asserted detriment does not exist as a matter of fact or, that if a possibility of such detriment were to arise, that prospect is unlikely. In both cases, the Responsible Authority would have to be satisfied to the requisite degree.

49. The above propositions are consistent with the approach of the Tribunal in Marsden and we refer to the penultimate paragraph on page 14 of the report in the following terms :

"The Tribunal believes that the test must be an objective one. It is not an easy task to apply an objective test to a perception. Nevertheless the Tribunal believes on its proper construction that there must be, at the least, a reasonable basis for believing that the perception of detriment has some foundation".

50. In Wilde v City of Moonee Valley B McKay and Others at p.158 the Tribunal drew a distinction between the phrase "perceived detriment" and "perception of detriment". It stated :

"A perceived detriment is an actual detriment that someone perceives, that is to say apprehends with the mind, understands. A perception of detriment on the other hand need not entail anything that is an actual detriment at all. Someone who quite mistakenly believes that there is a detriment can be said to have a perception of detriment where there is no detriment".

51. We consider the introduction of the word "actual" is unnecessary because s.60(5)(a) refers to "a detriment of any kind". Those words are plain English words and do not require further elaboration. A detriment of any kind is any detriment whatsoever and we think that the Tribunal was seeking to distinguish the fact that a detriment is likely as being an "actual detriment" from a "perception of detriment" as a detriment that was either inchoate or unlikely and therefore not a "detriment of any kind". In the following passage on p.158 the Tribunal set out the test in the following terms :

"The Responsible Authority or the Tribunal must consider whether it is satisfied that the owner of benefiting land is likely to suffer any detriment of any kind but not whether persons have a perception of detriment that does not truly amount to detriment".

52. This accurately sets out the test in our view and we would only add that the word "any" be substituted for the word "the" before the word "owner" would accurately set out the test for the purposes of s.60(5)(a). At p.7 of the Grisby decision, the Tribunal, as it did in Wilde, referred to "actual detriments" and also to "perceived detriment". As we have stated in paragraph 47, the distinction is not warranted because it introduces into the sub-section the word "actual" which is absent and contrasts it with the word "perceived" to find meaning for perceived. The sub-section refers to detriments of any kind (including perceived detriment). The purpose of the words in parenthesis are to make it clear (though probably it is not necessary to do so given the words immediately preceding the brackets) that the detriment is of any kind whatsoever. It is not helpful to draw a distinction between actual detriments and perceived detriments because the distinction is not to be found in the sub-section.

53. Support for this interpretation of s.60(5)(a) of the Planning and Environment Act 1987 is to be obtained from the consideration of the Supreme Court of Victoria in Thorne and Others v Doug Wade Consultants Pty Ltd and Others [1985] VicRp 48; [1985] VR 433 where the Court considered s.18B of the Town and Country Planning Act 1961. That section provided in sub-section (i) as follows :

"Notwithstanding that the interim development order or any regulation does not specify that notice of an application for a permit be given or provided where the responsible authority is of the opinion that the grant of a permit may cause a substantial detriment to any person other than the applicant, the responsible authority shall not determine to grant the permit unless it does one or other of the following acts .....".

54. Objectors challenged the granting of a permit under the Regional Planning Scheme then in force on the grounds that no reasonable person acting as the responsible authority could have formed the opinion that the grant of a permit would not cause a substantial detriment to any person other than the applicant. This the court held "imposed an obligation upon the authority to form an opinion on the question". Further at p.78 it was held :

"It is also clear, I believe, that in choosing the word `detriment' the legislature was drawing a distinction between a tangible detriment which can be measured in money terms and an intangible detriment such as loss of privacy.

If the position were otherwise, the legislature might have used the word `damage'. The ordinary meaning of the word `detriment' is `harm done'. Harm may be caused to a person in a real sense falling short of causing actual monetary loss".

55. There the court was dealing with the substantial detriment criterion. An opinion (or a perception) that a detriment might occur goes to the issue not whether a perceived detriment is a detriment for the purposes of s.60(5)(a), but rather whether a detriment was unlikely. A detriment which is perceived but inchoate or is choate but is unlikely to occur as a realistic possibility would be insufficient. However, if it appears that there is a real chance or possibility that detriment will result, the permit application should be denied. Whether an occurrence is likely or unlikely will vary in the meaning according to its context. In Department of Agriculture v Binnie [1989] VicRp 73; [1989] VR 836 at p.841 Marks, J. stated that the ordinary use of the word "likely" is synonymous with "probable", that is, there being more than a 50% chance of the event happening. In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 42 FLR 331 and [1979] FCA 85; 27 ALR 367 interpreted "likely" in the context of the Trade Practices Act not to mean "more than a 50% chance". Deane, J. at p.346 of FLR and 381 of ALR said :

"It can also, in an appropriate context, refer to a real or not remote chance or possibility, regardless of whether it is less or more than 50%. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to `prone', `with a propensity' or `liable'.

56. In our view, the expression `will be unlikely to suffer any detriment' in s.60(5) of the Planning and Environment Act 1987 does not necessitate a finding that detriment will occur as a probability, rather it is sufficient that there be a possibility, which is neither fanciful nor remote that a detriment may occur.

57. From the above the following propositions may be distilled :

(a) It is for the Responsible Authority or the Tribunal to determine whether any covenant beneficiary "will be unlikely to suffer any detriment of any kind".

(b) This determination must be made on the evidence in the instant case including the appeal site and its environs.

(c) Compliance with the Good Design Guide does not, in itself, and without more establish that a covenant beneficiary would be unlikely to suffer any detriment of any kind. The Guide represents a balancing of advantages and detriments and once any detriment is shown the application must fail.

(d) There must be a real chance or possibility that a detriment will result, mere assertion or belief will be insufficient.

(e) The sub-section requires consideration of detriments of any kind. This raises questions as to what effect a variation or removal of a covenant would have upon the amenity of the covenant beneficiaries' land. The concept of 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 inquiry.

(f) The nature of the inquiry is fundamentally different from that appropriate in an ordinary permit appeal because the former is concerned with any detriment whereas the latter, like the Good Design Guide, requires a balancing of advantages and detriments and interests between the landholders and the wider public interest.

58. The issue for the Tribunal to determine is whether it is satisfied to the requisite standard that the variation of the restrictive covenant would not, as a likelihood, cause any detriment

59. Mr Wikrama of counsel for the objectors identified four elements of detriment. They are :

(a) Mrs Lavender, Mr Sherriff and Mr Carabott whose properties have the benefit of the covenant all gave evidence that when they purchased their properties they believed that they would reside in a neighbourhood characterised by substantial allotments which were the site of only one dwelling, set well apart from one another and surrounded by large garden areas. Both Messrs Sherriff and Carabott purchased their lots with the knowledge of the covenant and took comfort from it. Mr Sherriff went so far as to contend that if the covenant were modified in the manner proposed, he would sell his property and move elsewhere.

(b) An intrusion upon this open space would result in a fall in the value of properties benefiting from the covenant and the consequential financial loss upon resale. This proposition is based on the evidence of Mr Erriciello, a licensed estate agent, though not a qualified valuer, who nevertheless had sold homes in the Greenvale area for eight years and the evidence of Mr Cerini the valuer for the Hume City Council.

(c) There would follow an alteration to the streetscape and "dramatic change in the street" which would be completely out of character with other dwellings in the area.

(d) Residents in properties benefiting from the covenant would also be subjected to increased levels of noise emanating from the proposed six dwelling complex at No 15.

60. We have concluded, in dealing with the first appeal, that the proposal is too intensive a development of the site and that it would offend the character of the neighbourhood and would offer a poor standard of residential amenity for any future occupant. Our reasons are set out in paragraphs 22-34 inclusive and it is not necessary for them to be restated. What is significant for this second appeal is that we find detriment to the neighbourhood, including the beneficiaries' properties would result; because the proposal is out of character with the neighbourhood. This is the third of the four elements of detriment identified by Mr Wikrama. In our view, this is sufficient detriment to prevent variation of the covenant pursuant to s.60(5) of the Planning and Environment Act 1987.

61. In summary, on the evidence we are not satisfied that no detriment whatsoever would be sustained by any of the persons whose properties benefit from the restrictive covenant. On the contrary, we are persuaded that it is at the very least highly likely that detriment will be suffered by those persons. It follows from this finding necessarily, that the objections made by such persons are soundly based and could not be said to be vexatious or not made in good faith.

62. For these reasons, we dismiss the appeal and affirm the decision of the City of Hume.

A. Appeal 1997/77561 is allowed and no permit is granted.

B. Appeal 1997/90731 is dismissed and no permit is granted.