1. The decision of the responsible authority in relation to planning permit application no YR-2006/1008 is set aside.
2. The Tribunal directs pursuant to section 85(1) Planning and Environment Act 1987 that a permit is granted and directs the responsible authority to issue a permit for the land at 8 Durham Road, Kilsyth allowing:
   • (a) removal of the restrictive covenant contained in transfer registered no 2506913 from the land comprised in certificate volume 07835 folio 152 registered in the name of Kathryn Michael Timms, and
   • (b) the construction of a second dwelling on that land in accordance with the endorsed plans.
3. The permit shall contain the following conditions:
   1. Prior to the commencement of the permitted use/development, an amended plan(s) must be submitted for approval to the satisfaction of the Responsible Authority showing:
      • (i) The proposed 1.8 metre high fence in the frontage of dwelling be relocated to be setback 3 metres from the front boundary of dwelling 2 for a distance of 6 metres.

When approved the plan(s) will be endorsed to form part of this permit.

1. The layout of the site and the size of any proposed buildings and works shown on the endorsed plans cannot be altered or modified unless agreed to by the Responsible Authority.
2. This permit will expire if one of the following circumstances apply:

(a) the development is not started within two (2) years of the date of this permit;

(b) the development is not completed within four (4) years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three (3) months afterwards.

1. The landscape works as shown on the endorsed plan must be carried out prior to the occupation of the dwelling. New planting must be maintained or replaced as necessary to the satisfaction of the Responsible Authority.
2. Prior to the commencement of the permitted development, an amended landscape plan(s) must be submitted for approval to the satisfaction of the RA showing:

(a) That the use of Maiden-hair fern and Soft Tree Fern in a north facing position be reconsidered as it may be too sunny and dry for them to survive without excessive irrigation.

(b) That mulch be maintained to a level of 75mm. The mulch must not be Jarrah or Red Gum. Schedule mulch includes pine bark, eucky mulch, jute mat or pebbles.

(c) All new plantings must be maintained (weeding and irrigation) for the first 24 months or until plants have well established.

1. Prior to the occupation of the permitted development, the parking areas and vehicular accessways shown on the endorsed plan must be fully constructed, sealed, drained and delineated to the satisfaction of the Responsible Authority.
2. Prior to the occupation of the permitted development, a 4.50m wide vehicle crossing must be constructed in Charles Street to serve the development to the satisfaction of the Responsible Authority.
3. Prior to the occupation of the permitted development, piped drainage must be constructed to drain all paved areas to the satisfaction of the Responsible Authority.

Oral reasons for the decision were given at the hearing.

Mr Robert Easton of Easton Consulting, Planning, Development and Subdivision Consultant

1. Mrs Timms seeks a review[1] of Yarra Ranges Shire Council's (Council) refusal to grant a permit in permit application[2] to construct a second dwelling on the land at 8 Durham Road, Kilsyth and to remove a restrictive covenant from the land imposing requirements for a single dwelling and restrictions as to quarrying.
2. I do not propose to set out the details of the land, locality, the proposal, the planning scheme provisions or the background to council's consideration which were comprehensively set out in the written submissions presented on behalf of council. I note the parties did not dispute the correctness of the relevant background facts in any significant way. The photographs, maps and diagrams produced and on VCAT's file have given me a good understanding of the land, its context and the proposal.
3. After discussion with the parties I found the photos plans and materials submitted adequately illustrated the land and the surrounding area and that no inspection was necessary.
4. I have considered the parties' submissions, the relevant matters under the planning scheme and the details of the proposal.

1. The land is subject to a registered restrictive covenant contained in Transfer Register No. 2506913 dated 24 June 1952. It contains restrictions against the removal of earth, clay, stone, gravel or sand from the land and also provides that the transferees

Will not build, construct or cause to be built constructed or erected on the said land any building other than 1 dwelling house without buildings and such dwelling house exclusive of outbuildings shall be of at least £1,250 in value.

1. However the transferor is Timms Subdivision Pty Ltd (which Mr Easton advised was in liquidation) but was not expressed to be in favour of that company as the registered proprietor of any land, in particular of any land remaining un-transferred in the subdivision of which the land was part owned at the time by the transferor..
2. Whilst section 61(4) Planning and Environment Act 1987 directs a responsible authority to refuse to grant a permit if the grant of the permit would authorise anything which would result in a breach of a restrictive covenant, unless a permit has been issued or a decision made to grant a permit to allow the removal or variation of the covenant, the provisions of section 61(5) are not applicable.
3. Section 61(5) provides that a responsible authority must not grant a permit which allows the removal or variation of a restrictive covenant unless it has satisfied (inter alia) that
   • (a) The owner of any land benefited by the restriction .... 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.
4. In this case, section 61(5) does not apply as no land is benefited by the restrictive covenant and there is no owner of any land benefited by the restrictive covenant. Section 61(5) presents no bar to the removal of the covenant. In these circumstances the covenant is "dead wood" and the Tribunal should follow its previous decisions in such cases to direct that the covenant be removed from the Certificate of Title[3]
5. The McEntee decision related to a situation where the land was the last lot transferred out of the parent title and the Arifogalou decision was a case where the restrictive covenant was held not enforceable as it did not identify any land benefited, eg. by reference to "the land remaining un-transferred" in the parent title.

1. Council also relied on the restrictive covenant as giving an indication of the character of the area as a single dwelling area. Whilst the Planning and Environment Act 1987 does give protection to the owners of land benefited by a restrictive covenant, the covenants do not form part of the planning scheme and cannot be had regard to in determining the character of the area.
2. A further ground of objection by the council was that the proposed boundaries between dwellings 1 and dwelling 2 was irregular. I do not find this is a sound ground of objection as the proposal for the second dwelling contains generous provision for secluded private open space in excess of that required by Clause 55 and accordingly it was not necessary to move the existing garage on dwelling 1 to provide additional open space.
3. This requirement is not justified for landscaping reasons as the existing valuable trees on the site will remain substantially intact and the generous private open space provision will provide appropriate landscaping opportunities.
4. Objection was taken to the height and bulk of the second dwelling. However this is not borne out as the fixed floor level of the second dwelling was lower than the floor level of the existing dwelling on the land and also lower than the dwelling on the adjoining allotment and the roof heights were similar. Otherwise the dwelling presented as an unexceptional, well designed, modern, single storey, single dwelling on an allotment with a good size frontage in a suburban street. It will replace a long paling side fence. Its aspect will improve the character of the street.
5. Mr & Mrs Cox were concerned that the second crossing into the street near the bend close to a number of other crossings, would create traffic problems. However, the Officers Report (which supported the proposal) indicated that council had raised no traffic issues after the matter had been referred to Council's Engineering Department.
6. Otherwise the proposal was entirely consistent with the provisions of State and local policy which in the Shire of Yarra Ranges encouraged medium density housing in this area.
7. An issue was raised as to the setback of the frontage of dwelling 2, it being submitted that the dwelling should be set significantly further back from Charles Street as the dwelling on the adjoining allotment at 9 Charles Street, was setback 9 metres, whereas the front study of dwelling 2 was setback 2.84 metres over a distance of 3.5 metres, in front of the garage is setback 4.64 metres and the living/dining room is setback 6.43 metres.
8. However, as this is a second dwelling on a corner allotment the provisions of Standard B6 in Clause 55.03-1 apply, which require that where the site is on a corner, the front walls of new a development fronting the side street of a corner site should be setback at least the same distance as the setback of the front wall of any existing building on the abutting allotment facing the side street or 3 metres, whichever is the lesser.
9. In this street the lesser 3 metres applies but because of the angling in the street and the articulated frontage, I consider that a variation to allow the 2.84 metre setback on the study is appropriate. The salient feature here is that the projection of the frontage of No. 9 Charles Street meets the front corner of the garage of dwelling 2, providing an appropriate transition.

[1] Application under section 77 Planning and Environment Act 1987against refusal to grant a permit.

[3] McEntee v Frankston CC [2003] VCAT 80 (20 January 2003) and Lou Arifogalou v Stonnington CC [2003] VCAT 1461 (16 October 2003)