Mr Peter Stoops, the applicant, appeared in person.

Ms Jane Sharp, solicitor, of Maddocks, solicitors, appeared for the responsible authority.

Mr Hamish Paul Flight, objector, appeared in person.

Application under section 79 of the Planning and Environment Act 1987 for a review of the failure of the responsible to grant a permit within the prescribed time.

Residential 1 Zone and subject to a Design and Development Overlay Schedule 6 under the Frankston planning scheme.

1. This case concerns land known as 2 Fenton Crescent Frankston. It is owned by the applicant, Peter Stoops. It is the land in Certificate of Title volume 07575 folio 099. It is the land in lots 1 and 2 in Title Plan 855016C having formerly been lot 6 and part of lot 7 in Plan of Subdivision 12936.
2. The land is subject to two restrictive covenants. The part of the land that was formerly lot 6 on the Plan of Subdivision mentioned above is subject to the restrictive covenant in Transfer of Land 1770776 dated 26 April 1940. Lot 7 on that Plan of Subdivision is subject to the restrictive covenant in Transfer of Land 1770775 also dated 26 April 1940. That second covenant, applying as it does to Lot 7 on that Plan of Subdivision also applies to that portion of lot 7 that forms part of the land of Mr Stoops known as 2 Fenton Crescent and included in his above mentioned Certificate of Title.
3. These covenants are worded in a way that is not simple,and use an expression that has become archaic. It is sufficient, for present purposes, to seek to impose a restriction so that only one dwelling is allowed on each lot.
4. For some time Mr Stoops has been seeking to develop this land in various ways. There have been several previous proposals and cases in relation to them have been heard and determined before this Tribunal[1]. Some previous applications were unsuccessful.
5. Mr Stoops' current proposal is that he wishes to resubdivide his land. In effect he wishes to consolidate lot 6 and part of lot 7, now more correctly referred to as lots 1 and 2 on the Title Plan mentioned above, and then resubdivide them to create two lots, each capable of being the site of a house.
6. To this end he applied for a two lot subdivision (to achieve that resubdivision) and for the removal of the restrictive covenants. The responsible authority refused the application and the matter came before this Tribunal when Mr Stoops applied for a review of that refusal pursuant to Section 77 of the Planning and Environment Act 1987 ("PE Act"). That case was Stoops v Frankston CC, Graeme Lyell and ors[2] determined by Mr Philip Martin, Member of this Tribunal.
7. That case was heard on 19 January 2006 and determined by a written order of 6 February 2006. In that determination the Tribunal made orders by consent, the parties having come to an agreement in relation to it. By consent the decision of the responsible authority to refuse to grant a permit was set aside with no order as to costs and a further order was made directing the issue of a permit subject to 7 conditions.
8. For present purposes it is relevant to refer to the words granting permission in relation to that permit and to the sixth of those conditions. The words of granting permission read:

The responsible authority was directed to issue a permit for the subdivision of the land into two lots in accordance with certain plans and for the removal of the restrictive covenant contained in Instrument of Transfer no 2255898.

It is to be noted that the restrictive covenant referred to here is not either of the two previously referred to and with which I am now concerned.

1. Condition 6 of the order of the Tribunal, and of the permit directed to be issued reads:
   1. Before a Statement of Compliance is issued under the Subdivision Act 1988, the owner must remove or vary the restrictive covenants recorded in Instrument[3] of Transfer Nos. 1770776 and 1770775 in such a way that a single dwelling may be lawfully constructed on each of the lots to be created by the subdivision.
2. The current proceeding, and the permit application giving rise to it, represent steps now being taken by Mr Stoops to comply with Condition 6 so that he may then go ahead and obtain a Certificate of Compliance and proceed with this proposed subdivision.
3. He has applied to the responsible authority for a permit to vary the restrictive covenants. The application does not seek permission for the actual construction of any buildings or works on any part of the land, only the modification of the restrictive covenants.
4. Section 52 PE Act imposes requirements as to the giving of notice of permit applications. What is required varies in relation to various sorts of application.
5. Some notice of this application has already been given. The question before me at this directions hearing is whether that notice is sufficient, or whether some further, and if so what further, notice ought to be ordered to be given.
6. I have mentioned that the requirements of Clause 52 vary according to the nature of the application. In relation to the present case it is relevant to bear in mind the nature of the application being made, and that certain other possible applications are not being made at this time. It is possible, and not unusual, for an application to be made for variation of a covenant to allow particular development where the development itself requires planning permission. That is not the situation in relation to the current case, but where it arises, it is necessary to consider what notice needs to be given in relation to each of the planning permissions being sought. Indeed, that is true of all permit applications where more than one planning permission is being sought in the one application.
7. In the course of the hearing before me on 27 June 2009 reference was made to an earlier decision of mine in Ventura v Darebin CC[4]. That too was a case where there was an application to vary a restrictive covenant which limited the land in that case to one dwelling. The variation was to remove the single dwelling restriction. However, there was no application for permission for the second dwelling ultimately contemplated for that land. I will quote part of what I said in paragraph [11] of my reasons in that case in relation to the nature of restrictive covenants where I said

A restrictive covenant after all, has its origins in a private contract for a sale of land. The benefit of such a restrictive covenant is not available to the public as a whole, simply on the basis of being part of the public. On the contrary, the benefit of a restricted covenant attaches only to some particular pieces of land and the owners of such benefiting land.

1. In the contract of sale of the land an agreement is made between parties that the land being sold will be burdened by the restriction or restrictions specified in the covenant. The covenant restricts the land being sold to the purchaser, but it is for the benefit of land retained in the ownership of the vendor. Initially this applies to the original parties to the contract of sale, but it can be put on a basis so that the burden of the covenant runs with the land sold to the successors in title of the original purchaser and the benefit of the covenant remains with the land originally benefited and runs to the successors in title of the original vendor of the land. The benefit may be in favour of more than one piece of land owned by the vendor at the time of the original contract of sale. A common example is where a vendor has subdivided the land, for example into twelve lots. If, at the time of the sale of the lot bearing the burden of this particular covenant is the fourth of the lots in the subdivision to be sold, then the vendor owns the remaining eight that might be sold at later dates. The restrictive covenant can be implemented in such as way that the benefit of the covenant attaches to each of those eight lots.
2. Thus, by operation of private real property law, the bargain made between the original vendor and the original purchaser to burden the land being sold in favour of other land can pass down to the current owners of the land that was burdened and the other lands being benefited.
3. Those burdens and benefits, having been created by private contract, can if the current owners see fit, be dissolved by private agreement. Other members of the public, simply by being members of the pubic, but who are strangers to the original agreement and are not successors in title to the land burdened or the land benefited, are not involved in questions as to the form, existence, continuance, enforcement, variation or removal of such restrictive covenants.
4. The means of amending or removing a restrictive covenant are limited. They were and are quite limited under common law (as distinct from law made by Acts of parliament) and traditionally there has been a statutory means of removal and modification by the Supreme Court pursuant to Section 84 of the Property Law Act. In the early 1990s parliament created two new statutory means of modifying or removing restrictive covenant. One of them is the one presently being pursued by Mr Stoops namely to obtain a planning permit for covenant modification.
5. Planning and planning laws are public laws in relation to which the public has an interest, quite apart from people who might have a specific interest in specific proposals. What has been done has been to adopt planning procedures created under pubic law as a means of providing a private property remedy in relation to private property rights. That may or may not be anomalous, but that is the expedient that has been adopted by parliament.
6. All this means that consideration has to be given to what notice needs to be given of an application like the current one. It is obvious, in the first place, that notice must be given to the owners of land with the benefit of the covenant. Such owners, after all, are the people who have, enjoy, and can enforce the rights that are sought to be modified or removed.
7. There is a statutory provision requiring notice to be given to the owners of land having benefits of the covenant. That section requires notice to be given

(cb) to the owners...[5] and occupiers of land benefited by a restrictive covenant, if the application is to remove or vary the covenant;

1. Thus notice must be given to the owners of land with the benefit of the covenant. It is common ground before me that these owners have been identified and have been given written notice in circumstances I will mention hereafter.
2. Paragraph (cb) of subsection 52(1), in addition to requiring notice to the owners of land with the benefit, also requires notice to be given to the occupiers of land with the benefit of the covenant. Occupiers, simply by being occupiers, do not have the legal rights of the owner of the land in relation to the benefits of the covenant, but it might be said that they have an interest, even if it be a private law contract interest, in the enjoyment of the land and perhaps in the enjoyment of the benefits conferred on the benefiting land by the covenant. For example, land let to a tenant is owned by the landlord who is thus the owner of the land benefiting, but the tenant may derive benefit as tenant and occupier through the lease that has given the tenant that right of occupancy.
3. There is a dichotomy in relation to restrictive covenants that might be removed by the planning permit process that has been adopted by Mr Stoops. The distinction is found in Section 60 PE Act and it is between restrictive covenants created before 25 June 1991 and those created on or after that date[6] and those created after that date.
4. The distinction is important because subsections (2) and (5) of Section 60 impose restrictions or partial bars, on the power of the responsible authority, (or on review by the Tribunal) to grant permits for covenant variation or removal. The requirements in subsection (5) are considerably more severe than those in subsection (2). It is subsection (5) that applies in the present case. The subsection (5) constraints refer to the owner of land benefited, not occupiers, and not anybody else. The rather severe restrictions imposed by subsection (5) protect and only apply to such owners.
5. As I have already said, it is common ground before me that such owners have received notice. The question before me is as to whether further notice is required. In particular the responsible authority is concerned that further notice should be given by means of a notice on the land and the publishing of notice in a newspaper generally circulating in the area.
6. On the face of it, I would have thought that such general notice was both unnecessary and unwarranted. It is likely to attract the attention of persons who are not the owners of land with the benefit of the covenant, or even the occupiers of such land.
7. It would be different if some other planning permission was being sought at the same time, a permission for which general notice is required. Even then it might be appropriate to distinguish between the permission in relation to which anyone may object by virtue of being a member of the public on the one hand, and the permission that affects only the private property law rights of the owners of land with the benefit of a covenant.
8. In this present case no other permission is being sought, and it is only the private property law rights of the owners of land benefiting that are proposed to be altered.
9. It can be highly inconvenient to give notice and to attract objections from people who are not entitled to be objectors or parties to subsequent review proceedings. I say that as a general proposition, rather than with particular application, for the moment, in relation to restrictive covenant cases.
10. My decision in Aldi Stores Pty Ltd v Cardinia SC [7] is a case in point. That was not a restrictive covenant case. It was a case that concerned a supermarket. No planning permission was required to use the land as a supermarket but three planning permissions were required. They were for the proposed buildings and works, for proposed advertising signs, and for a reduction of the otherwise standard parking provision for the shop. The first two of these were exempt from the giving of notice of the application, the giving of notice of the decision of the responsible authority and from objectors for review rights under Section 82 PE Act. Reference was made to West Valentine v Stonnington CC[8] and my decision in Hope & Percy Pty Ltd v Moreland CC[9] where it was noted that people who would otherwise be potential objectors are excluded by such exemptions and should not be joined as parties.
11. Although the first two permissions were exempt, the third, in relation to a reduction in standard parking provision, was not subject to an exemption. As to that permission, consideration had to be given to the giving of notice and persons who received such notice could become valid objectors entitled to notice of the decision of the responsible authority and they could initiate a review under Section 82 PE ACT.
12. In the Aldi case notice was given of the application without any distinction as to the three permissions being sought and to the fact that there was a right to object and participate in relation to only the third of them. In the event the Lakeside Lutheran Church, which had land nearby, objected and appeared, though a town planner, at the subsequent review proceedings before the Tribunal. It did so believing that it was in the position to put a case in relation to the planning merits of the proposed buildings and works, and perhaps the signs. It was not interested in the question of parking, although that was the only matter in relation to which it had rights. At paragraph [9] and [10] I said

[9] This case is another example of the inexpediency of the responsible authority giving notice of a permit application where the permission sought is exempt from the giving of such notice. It has the result of causing people to think that they are entitled to lodge objections and to participate in subsequent proceedings where that is not true. If a permit application is lodged with the responsible authority for a project requiring several planning permissions, and where the responsible authority considers that notice should be given of one or more application in relation to permission that are non-exempt, then it is desirable that it should be made clear in the notice which of the permissions sought can be the subject of objection.

[10] This is a cumbersome thing to have to do, but it is preferable to giving notice generally, and misleading people into thinking they can be objectors and parties in relation to exempt permissions being sought. There was some understandable complaint on behalf of the Lakeside Lutheran Church that, believing itself to be a party, it incurred expense in being represented. That unsatisfactory situation would have been avoided if the responsible authority had made it clear, when giving notice, that it was limited to the carpark in question. It would also have been avoided if the responsible authority upon receiving an objection extending beyond that question had made it clear (preferably in writing) to the would-be objector that its scope was limited to that part of the question. If the would-be objector fails to read and comprehend the limitations on its right in those circumstances, then the fault can be attributed to the objector rather than the responsible authority, or for that matter, the Tribunal.

1. Similar considerations, and similar disadvantages, apply, if wide general notice is given of permit applications in relation to the modification or removal of restrictive covenants where that is the only permission being sought, and where those whose rights are being affected is limited to the owners of land with the benefit of the covenant, or perhaps such owners together with occupiers with such land? I have certainly thought so.
2. In the Ventura case mentioned above, I made some comments to that effect in [16] of my reasons in that case. That was a case, it may be recalled, where there was an application to remove a restriction to a single dwelling but no application for permission for a second dwelling on the lot, although further planning permission would be required for such a second dwelling or for that matter, for subdivision of the land. I might add that these observations were made after the question has been discussed in the course of the hearing in that case. In paragraph [16] after referring to the requirements of section 52(1)(cb) in relation to the need to give notice to the owners and occupiers of land with the benefit of the covenant I went on to say

That was done. However, that is not all that was done. Further notice was given to others who did not own or occupy land with the benefit of the covenant, at least by the mode of the display of the sign of the land and an advertisement in the press. That gave rise to a number of objections being lodged with the responsible authority from people who are not owners or occupiers of land having the benefit of the covenant. They include Ms. Ventura. It also led to these people who are not the owners or occupiers of benefiting land raising various objections on the planning merits of a second dwelling on the land even though the application for such dwelling has yet to be made, and no plans for such construction are in existence. It seems to me that these grounds of objection really relate to the second application that has yet to be made, and not to this first one currently under consideration. Further it seem (sic)[10] to me that it has caused confusion and trouble for those who have objected and the responsible authority and the permit applicant by attracting objectors who do not own land with the benefit of the covenant in relation to the consideration of whether the covenant should be varied, and giving the objectors the impression that this is their occasion for objection, rather than when subsequent application for planning permission is made.

[17] As I have said, apart from that more general notice, specific notice was given to the owners and occupiers of land with the benefit of the covenant. In the event, no objections were received from the owners and occupiers of land that benefited. The only objectors were from the owners and occupiers of land, mainly in or near Helsey Street, which do not have the benefit of the covenant. ...

[20] At the hearing Ms Ventura and her son made oral submissions to me in relation to their concerns about the possibility of a second dwelling being erected on the land. Some of these concerns, in relation to shading for example, would be relevant if permission was being sought for the construction of a second dwelling and will be relevant if and when such an application was made.

1. I went on, in the circumstances of that case, to affirm the decision of the responsible authority to modify the restrictive covenant.
2. In the hearing before me in relation to the current case, I was referred to my decision in Kellas v Kingston CC[11]. In paragraph [24] of my reasons in that case I said that:

[24] The responsible authority required notice to be given, not only to the owners of the land enjoying the benefit of the restrictive covenant in question, but to others in the locality. That was a mistake in that only the owners of land enjoying the benefit are relevant to this purpose. Others might be included in the event of a subsequent application for a permit for subdivision or for two or more dwellings on the land, but nothing of that sort has been applied for so far.

However, it is better that responsible authorities require notice to be given to potential objectors who own land enjoy (sic)[12] the benefit of the covenant (unless other permissions for which others might be legitimate objectors are made at the same time). Giving notice to people who are not relevant is only likely to cause them to lodge objections and seek to participate under the impression that they have relevant rights but (sic)[13] do not, in fact, exist.

1. These questions were also discussed in the hearing in relation to that case but I was not referred to section 52(1)(aa) PE Act, and may have overlooked it on that occasion, although it would not have been directly in point in relation to the responsible authority having required separate written notice to be given to individual people. It is clear that I had that provision in mind in Giannakis v Glen Eira CC[14] where I referred to it. It is this provision that has caused the responsible authority to raise the question as to whether further notice now needs to be given. It reads:

(1AA) If an application is made for a permit to remove or vary a registered restrictive covenant or for a permit which would authorise anything that would result in a breach of a registered restrictive covenant, then, unless the responsible authority requires the applicant to give notice, the responsible authority must give notice of the application in a prescribed form -

(a) by placing a sign on the land which is the subject of the application; and

(b) by publishing a notice in a newspaper generally circulating in the area in which the land is situated.

1. In its terms, this provision applies to the present case because the present case involves an application to vary a restrictive covenant. It calls for notice to be given generally, or to the general public, by placing a sign on the land and a notice in the newspaper. This is very likely to attract objections from people who are not the owners or occupiers of land having benefit of the covenant and whose rights might be affected by a modification of the covenant. It is likely to attract the problems that I have mentioned in previous cases. It is not obvious to me why the provision exists, at least in its present form, and why its repeal would not be an advantage. Is it intended to be a second precaution to catch the attention of somebody who owns or occupies land with the benefit of the covenant who, for some reason or other, might not receive notice by means of being served with an individual written notice? That seems unlikely.
2. Whether such notice is necessary or desirable, and whether the provision is justified in appearing in the Act, it does appear, and accordingly needs to be complied with. The responsible authority is certainly justified in drawing attention to it.
3. What notice has in fact been given? Ordinarily the responsible authority would give notice or require the giving of notice, of an application like this, under Sections 52(1)(cb) and (1aa). However, Mr Stoops took initiative available to him under Section 52(2A). That provision needs to be read together with the following subsection (2B). I set them out as follows:

52(2A) An applicant may give notice under this section, if, within 10 working days after receiving the application, the responsible authority has not told the applicant -

(a) whether or not the applicant is required to give notice under this section; and

(b) the persons (if any) it requires to be notified under subsection (1)(d).

(2B) It is sufficient notice for the purposes of this section if an applicant to whom subsection (2A) applies -

(a) gives the notice required by subsection (1)(a), (b), (c), (ca) and (cb) and subsection (1AA); and

(b) gives notice in accordance with subsection (2)(a)(i) and (ii).

1. Mr Stoops has given notice pursuant to subsection (2A) to the owners of land with the benefit of the covenant. Section 52(1)(ca) requires notice also to be given to the occupiers of land with the benefit. He has not given notice under subsection (1AA) by means of a sign on the land and a notice in the newspaper. That provision contains the words "unless the responsible authority requires the applicant to give notice". I do not think that the appropriate interpretation of the subsection is that there is no need for a sign and notice in the paper if the responsible authority has required the applicant to give notice. I think the better interpretation is to say that the words including and following "unless" mean that the sign and newspaper notice must be given, one way or the other; by the applicant pursuant to a requirement of the responsible authority, then by the responsible authority itself.
2. That form of notice has not been given. The only prudent course is for it to be given. Mr Stoops agrees with that view and it amenable to giving the notice in those forms.
3. A further point was raised by the responsible authority in relation to subsection (2B). Mr Stoops did not give notice under subsection (1)(a), (b)(c)(ca) or subsection (2)(a)(i) and (ii). Does subsection (2B) mean that, if an applicant acts under subsection (2A) to give notice prior to direction by the responsible authority, is the applicant necessarily obliged to give notice in all those forms? For example, does that mean, pursuant to Section 52(1)(a) that notice need be given to the owners and occupiers of adjoining land, whether or not the adjoining land in question is land with the benefit of the covenant?
4. I do not think that is the correct interpretation. Subsection (2B) is certainly to be read with subsection (2A), but it is there for making effective the option of acting to give notice without waiting for a direction from the responsible authority. Subsection (2B) does not say that all those things must be done, rather it says that it will be "sufficient notice" if they are done. This does not necessarily mean, in a particular case, that it would be insufficient if notice under one or more of those provisions is omitted. It does mean though, that an applicant relying on subsection (2A) and omitting a possibility under (2B), takes the risk that the notice will be insufficient, and cannot rely on the assurance of sufficiency that full compliance with (2B) would otherwise give.
5. I notice that Section 52(1)(d), which empowers the responsible authority to give or require notice to be given to persons it considers might suffer a material detriment by the grant of a permit. Accordingly, sufficiency under subsection (2B) does not require notice under (1)(d).
6. As I have observed, prudence calls for any notice required by statute to be given, whether or not everyone can see the logical justification for the requirement. Mr Stoops adopts that position and acquiesces in the giving of directions accordingly.
7. I am not concerned, for present purposes, whether further notice is given by the responsible authority or Mr Stoops. However, it appears to me that it should be given by means of a sign on the land and a notice in the newspaper pursuant to subsection (1AA) and, if not already given to the occupiers of land with the benefit of the covenant, then to such occupiers in accordance with subsection (1)(cb). I will give directions accordingly.
8. Mr Stoops raised the question as to whether some note or notice should be given, in relation to further notice to be given, warning prospective objectors that, if not the owners or occupiers of land having the benefit of the covenant, their objection or participation might not be relevant. I think he draws this idea from what I said in previous cases, particularly Aldi's case. I see the sense of it, although it was particularly pertinent in Aldi's case, where the responsible authority gave a required notice generally in relation to three permissions being sought where two of them were subject to exemptions. No specific statutory exemption of that sort applies here. I bear in mind the cautionary note sounded by Ms Sharp that there is a prescribed form for the giving of notice which should not be derogated from, and which should be added to, if at all, then only with considerable caution. I know inconvenience and trouble might be caused to existing parties and prospective new parties, and possibly to the Tribunal too, and perhaps for no good reason; nevertheless if such inconvenience is incurred, it must be borne. I will not direct the giving of such a warning in this case.
9. It does seem to me to be appropriate, however, that the inclusion of subsection (1AA) might be reconsidered by the appropriate authorities.

[1] My colleague, Mrs Komesaroff, heard the case of Stoops v Frankston CC, Angus Harding and ors [2003] VCAT 965 and I heard and determined the case of Stoops v Frankston CC [2004] VCAT 591

[2] [2006] VCAT 167

[4] [2004] VCAT 860

[5] I have omitted an exception not relevant for present purposes

[6] I have simply used the word "created" here. Technically the first category includes restrictions registered under the Subdivision Act before that date or lodged for registration or recording under the Transfer of Land Act before that date.

[7] [2007] VCAT 1324

[8] [2005] VCAT 243

[9] [2006] VCAT 1445

[11] [2005] VCAT 2769

[14] [2002] VCAT 348