1. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the application is amended by changing the name of the applicants to:

Kuldeep Singh, Preeti Pundir, Tapan Das and Moni Rani Das

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 the permit application is amended by changing the name of the permit applicant to:

Kuldeep Singh, Preeti Pundir, Tapan Das and Moni Rani Das

1. The decision of the responsible authority in relation to permit application no. D/825/2013 is affirmed.
2. No permit is granted.

Variation of Registered Restrictive Covenant to delete reference to only one dwelling on lot.

Application under Section 77 of the Planning and Environment Act 1987.

Clause 52.02 - removal or variation of a restriction

The subject land is located on the south side of Glasgow Avenue, between Maclagan Crescent to the west and High Street to the east. The land is rectangular in shape and is approximately 631.5sqm in area. The site contains a single storey detached timber dwelling.

McFarlane v City of Greater Dandenong [2002] VCAT 696; Giosis v Darebin CC (includes Summary) (Red Dot) [2013] VCAT 825

1. The subject land at 5 Glasgow Avenue is burdened by a Registered Restrictive Covenant contained in Instrument of Transfer 2159503 dated 23 July 1948. The relevant part of the covenant provides:

...not more than one dwelling house shall be erected on each lot hereby transferred ...

1. The owners of the land have sought to delete this part of the covenant.
2. No concurrent development proposal accompanied the application for variation. There is therefore no indication as to the number of dwellings sought to be located on the land. During the hearing Mr Tsourounakis indicated he would like to amend the application to seek a variation allowing for 'two single storey dwellings' to be constructed on the land.
3. Given this was made late in the proceedings and no opportunity has been given to give notice to any beneficiaries or other parties, I have not allowed such an amendment.
4. The Responsible Authority issued on 20 February 2014 a refusal to grant a permit on the ground that the proposal 'will result in detriment (including perceived detriment) to beneficiaries of the restriction'.
5. The Responsible Authority received four objections to the application. One from the owner of 3 Glasgow Avenue, a beneficiary of the covenant who has lodged a statement of grounds with the Tribunal. The owner of 7 Glasgow Avenue has also lodged a statement of grounds with the Tribunal, this property is not a beneficiary of the covenant.
6. The application for review raises three issues for consideration by the Tribunal. They are:
   • Whether the beneficiaries of the covenant will suffer any detriment of any kind (including perceived detriment) if the covenant is varied?
   • Whether any objection by a beneficiary of the covenant was made vexatiously or not in good faith?
   • Whether the interests of other persons are affected by the variation?

1. The purpose of Clause 52.02 of the Darebin Planning Scheme is:

To enable the removal and variation of an easement or restrictions to enable a use or development that complies with the planning scheme after the interests of affected people are considered.

1. Under Clause 52.02 a permit is required before a person proceeds 'under Section 23 of the Subdivision Act 1988 to create, vary or remove an easement or restriction. Before deciding on an application, in addition to the decision guidelines in clause 65, the Responsible Authority must consider the 'interests of affected people'.
2. Pursuant to section 60 (5) Planning and Environment Act 1987 the Responsible Authority must not grant a permit which allows the removal or variation of a restriction created before 25 June 1991 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.

Will the beneficiaries of the covenant suffer any detriment of any kind (including perceived detriment)?

1. As stated in McFarlane v City of Greater Dandenong[2] even if no beneficiaries object to the variation application the Tribunal is not relieved of its duty to give full force and effect to subsection (5)(a).
2. The application is to vary the covenant to allow more than one dwelling to be located on the land. The detriment perceived by the owner of 3 Glasgow Avenue, a beneficiary of the covenant, is highlighted in the statement of grounds lodged with the Tribunal. The grounds are as follows:
   • increase in traffic in the immediate area;
   • disruption in the use of the common shared driveway;
   • reduction in the value of the property at No 3 Glasgow Avenue;
   • privacy would be compromised with the proposed developments;
   • compromises the streetscape of generally single-storey single dwellings.
3. There is no development proposal that accompanies the application which may have alleviated some of the objector's concerns expressed above, in particular in relation to the number of proposed dwellings, how the driveway will operate, whether their privacy would be compromised and what type of built form is proposed. However this beneficiary perceives that they will suffer detriment by the variation in allowing additional dwellings to be constructed on the lot. Certainly allowing the variation will disrupt what is the current status quo.
4. Mr Tsourounakis described the residential pattern of development along Glasgow Avenue as consisting of 'both single and double storey detached houses, constructed in the post-war era'. He indicated that 'several allotments to the west of the review site have been re-developed for medium density housing including Nos 1, 9 , 23' as well as 'abutting properties to the south of the review site that are developed with medium density multi storey dwellings.
5. Mr Tsourounakis also noted that 3 Glasgow Avenue is the only remaining land benefiting from the covenant.
6. I would agree with the Responsible Authority that as there is no development proposal it is difficult to be satisfied that any development would be unlikely to cause detriment to a benefiting owner[3]. It may be that if there was a development proposal in the form put by Mr Tsourounakis of two single storey dwellings then the owner of the benefiting land may not consider they would suffer any detriment of any kind from such a proposal, however as there is no development proposal is such a form it is understandable that the benefiting owner expressed concern.
7. The beneficiaries' land abuts the subject land it cannot therefore be said that there is some distance separating the subject land and the land benefiting from the covenant.
8. As stated in McFarlane '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'[4]. I am unable to be positively satisfied that the beneficiary will be unlikely to suffer any detriment.

Was the objection by a beneficiary of the covenant made vexatiously or not in good faith?

1. I am unable to conclude the objection by the benefiting owner of 3 Glasgow Avenue was made vexatiously. The concerns expressed are genuine concerns therefore on the face of the objection it cannot be said to be vexatious. The objection is not 'obviously untenable or manifestly groundless' that could lead to a conclusion that in a legal sense it is vexatious.
2. No evidence was submitted that would lead me to a conclusion that the objection was not made in good faith

Are the interests of any other persons affected?

1. The owner of 7 Glasgow Avenue has lodged a statement of grounds objecting to the variation of the covenant on the basis that 'we already have 5 units built directly behind us and one at 9 Glasgow Avenue, any future units built next door will impact our privacy further as they may overlook our property and will impact on the peaceful enjoyment of our home and garden'.
2. The property does not benefit from the covenant. However under Clause 52.02 of the Darebin Planning Scheme the Responsible Authority and in turn the Tribunal is required to consider the 'interests of any other persons affected' by the variation.
3. Whilst the property does not benefit from the covenant the proposal to vary the covenant by deleting the restriction of one dwelling on the lot could lead to multiple dwellings being constructed on the lot. In this case as there is no concurrent development proposal it is not unreasonable that the owner of 7 Glasgow Avenue raises a number of concerns. If the covenant was varied as requested a permit would be required for any future development and in such circumstances the owner of 7 Glasgow Avenue could object, raising similar issues that were raised in the statement of grounds.
4. Whilst I have noted the objections on their own they do not lead me to conclude that the variation should be refused on the basis of the objection by the owner of 7 Glasgow Avenue.

1. For the above reason that I am unable to be positively satisfied that the beneficiary of the covenant at 3 Glasgow Avenue will be unlikely to suffer any detriment. The decision of the Responsible Authority will be affirmed. No permit is granted.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] [2002] VCAT 696

[3] Giosis v Darebin CC (includes Summary) (Red Dot) [2013] VCAT 825