Top Cat Homes v Monash CC [2000] VCAT 1449

(a) A reduction in the height of the front fence to no more than one metre.

(b) An increase in landscaping along both sides of the driveway where it abuts Unit 1.

(d) The cladding of first floor external walls of Unit 2 to be in weatherboard or material having similar appearance.

(e) Variation to the alignment of the common driveway for Units 2 and 3 so as to deflect it away from trees on the western boundary.

(f) A brick front fence with a height of no more than 1m to be set on the front boundary with no set back.

(g) First floor highlight windows with sill heights not less than 1.6m above internal first floor level incorporated in the east wall of Unit 2.

(h) Screening to south-facing windows in Bedroom 3 of Unit 2.

(i) Each car space in relation to Units 2 and 3 to have a minimum width of 3m with consequential minor modification to kerb lines adjacent to the car spaces but with enlarged garden beds adjacent to the western side boundary retained, to facilitate forward movement of vehicles when leaving site.

(j) A 1m separation between the easternmost vehicle crossover to the review site and the crossover to the adjoining property to the east.

(k) A site layout plan showing proposed landscaping for the site, including the location of all existing and proposed plant species and the utilisation of semi-mature plants; incorporating trees with spreading canopies, to the front and rear of all units.

2. All on-site stormwater is to be collected from hard surface areas and must not be allowed to flow uncontrolled into adjoining properties (including the road reserve).

3. Trench gates (125mm minimum width) or Council approved equivalent are required to prevent discharge from the driveways on the footpath.

4.(a) Stormwater drainage of the entire site is to be diverted to the south-west corner of the property where it must be collected and piped to the side entry pit outside No. 34 Highland Avenue via a 225mm pipe and 900 x 600mm junction pit to Council standards.

(b) Unless a drainage contribution of $1,870.00 is paid to the Responsible Authority the peak discharge is to be retarded to the pre-development flow rate by the construction of an on-site retention system to the satisfaction of the Responsible Authority. Council approval of any retention system is required prior to the drainage works commencing.

5. No other fencing apart from that shown on the endorsed plan is to be erected on the property.

6. Before the use and development starts, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:-

(a) constructed to the satisfaction of the Responsible Authority;

(b) property formed to such levels that they can be used in accordance with the plans;

(c) surfaced with pavers or coloured concrete to the satisfaction of the Responsible Authority.

7. Landscaping in accordance with the endorsed plans is to be established to the satisfaction of the Responsible Authority prior to the occupation of any of the dwellings hereby permitted.

8. This permit will expire if one of the following circumstances applies:

* The development and use is not started within two years of the date of this permit.

* The development is not completed within four 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 months afterwards.

B. The Responsible Authority is directed to issue a permit in accordance with the above order pursuant to s 85(1)(b)(ii) of the Planning and Environment Act 1987.

C. Application for Review 2000/7149 is dismissed and no permit is granted.

____________________ ______________________

Ms Sally Moser, town planning consultant, appeared on behalf of the Responsible Authority. She presented written and oral submissions.

Mr Scott Stewart, solicitor of the firm of Minter Ellison, solicitors, appeared for the Applicant. In addition to oral argument he presented two written submissions, one in respect of each application for review. He also called Mr Bruce Keen, town planner who presented a written report and who gave oral evidence.

Various plans, photographs and other documents were tendered. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

In the course of the hearing, during a slightly extended lunch adjournment, we inspected the land and locality.

Applications under s.77 of the Planning and Environment Act 1987 (PE Act) for review of decisions to refuse to grant permits.

2000/7202 - Variation of a restrictive covenant affecting the land the terms of which restrict development on the land to a single dwelling.

Residential "C" Zone under the Monash Planning Scheme.

1. The proposal does not satisfactorily address the purpose and intent of the Good Design Guide for Medium Density Housing.

2. The proposed development is not appropriate for the locality in regards to its adverse impact on the streetscape and general neighbourhood character.

3. The proposed development has an adverse impact on the amenity of adjoining properties.

4. The proposal is contrary to the single dwelling covenant affecting the site.

* The Responsible Authority is not satisfied that the owner of any land benefited by the restriction will be unlikely to suffer loss of amenity and loss arising from change to the character of the neighbourhood if the restriction is removed.

In relation to both Applications for Review 2000/7149 and 2000/7202 the grounds are as follows:-

1. The proposal will not have a detrimental impact on the beneficiaries of the covenant.

2. The proposal will enhance the neighbourhood character and streetscape.

3. The proposal will not have a detrimental impact on the amenity of the area, or adjoining properties.

4. The proposal is consistent with the objectives, criteria and techniques of the Good Design Guide for Medium Density Housing.

Application for Planning Permit 26031, which has given rise to Application for Review No. 2000/7202, originally described the proposal for which a permit was sought in the following terms:-

That expressed the actual intention of the proposal too widely. It really sought a modification of the relevant restrictive covenant to allow the three unit development proposed in Permit Application 26033 and being reviewed in Application for Review No. 2000/7149. Early in the hearing an application was made to amend the permit application to substitute the word "variation" for the word "removal" in the statement of the purpose for which permission was sought. This amendment was consented to and granted.

1. The review site is in an area of almost flat land. It is centrally located on the north side of Sunburst Street between Highland Avenue to the west and Leumear Street to the east. Sunburst Street is a short street terminating in "T" intersections at either end. There are only eight properties with abutments to that street, four on the north side and four on the south. Of the eight, only six have frontages to the street, three on either side. The properties on the corners of the "T" intersection of Sunburst Street with Highland Avenue are corner blocks with frontages to Highland Avenue and "sideages" to Sunburst Street. The review site, fronting the northern side of Sunburst Street, midway between Highland and Leumear Streets, has a similar property on its eastern side with another on the Leumear Street corner. The latter having its frontage to Sunburst Street and its "sideage" to Leumear Street. That situation existing on the northern side of the street is reflected with similar boundaries on the southern side. Each property mentioned has a single storey house on it, although the two on the Leumear Street corners have "dual occupancies" in that each has a second house constructed in what was, presumably, its original backyard. The houses in this little street appear to date from the early post-war years.

2. Whilst the above description was probably true at one time for the wider neighbourhood generally, it is clear that the neighbourhood is in transition with many of the original houses being swept away to make way for much larger two storey edifices with large garage doors being prominent features of their presentation to the street. Such developments are found on the western side of Highland Avenue. Those positioned across the top stroke of the "T" of the intersection with Sunburst Street to look down this minor cross street and dominate the vista at that end.

3. Other multi-dwelling developments are to be found in this neighbourhood. Although Sunburst Street and a couple of the other east-west access streets have not yet been overtaken by the transition, it might almost be said that the modest scale of original housing, as it appears in such streets, is out of keeping with the newer much higher and larger developments that are replacing them.

4. We are indebted to Ms Moser for the following description of the development application which we quote from paragraph 3.2 of her written submission:-

Planning Application 26033 proposes the use and development of the land for three dwellings.

Unit 1 would be a three bedroom single storey residence with combined lounge and meals area. Separate vehicular access would be provided via a new crossover to Sunburst Street. The unit would have a floor area of 120 square metres. Private secluded open space would be to the rear and would have an area of 40 square metres. The front yard would also be for the exclusive use of future occupants. The garage would be constructed for a length of 6.4 metres along the eastern boundary and be set forward of the lounge room. The setback of the residence from Sunburst Street is a minimum of 6 metres. A setback of 3.5 metres from the western boundary would be provided.

Unit 2 would be centrally located within the block. It comprises a two storey residence with lounge, meals areas and kitchen plus a bedroom on the ground floor. Two bedrooms a toilet and separate bathroom would be located on the first floor. The upper floor is set back from the ground floor to the east and west but not to the north and south. Private secluded open space of 51.7 square metres is provided to the rear on the east side of the residence. Car parking facilities in the form of a garage with tandem space would be provided on the southern side of the dwelling and would separate the residence from Unit 1. The unit has a total floor area of 88.9 square metres (excluding the garage).

Unit 3 is located east-west across the rear of block. It would be single storey and 3 bedroom with a lounge room and meals/kitchen area. The residence would be constructed in part along the north and western boundaries of the land. Elsewhere the residence has minimum setbacks ranging from 1.6 to 4.3 metres to the north and 3 metres from the eastern boundary.

A garage and tandem car space are provided for the abutting Unit 2.

* brick pier with iron infill fencing of 1.6 metres high along the front of the property.

* site coverage 45.4% and hard surface coverage of 59.3%; and

5. After hearing the parties and adjourning for a short period we returned to announce our decision in relation to these applications for review. These were that the three unit development application would be allowed and the second application for review, in relation to modification of the restrictive covenant, would be dismissed. We then gave oral reasons for those decisions. Mr Stewart asked us to give in writing a summary of the oral reasons we had given. We understood him to be making this request particularly in relation to the restrictive covenant case. He wanted some record of the decision reached in relation to points he had raised in that case and the reasons in relation thereto. He said something to that effect that this would get those points out of the way. In what follows we give a brief summary of our reasons in relation to the development case and, in deference to Mr Stewart's request, a fuller account in relation to the restrictive covenant case.

6. We recognised, and it was not in issue, that this substantial block with its substantial street frontage is suitable in size, area, dimensions and topography for a three unit multi-dwelling development. It is also suitable having regard to its proximity to services and in relation to various relevant policy consideration as to varieties of housing style and urban consolidation. These matters were not in issue and not contested. The case, in relation to the development proposal, was rather as to whether the particular proposed development was appropriate from all the circumstances. As we have indicated, we found that it is.

7. In reviewing the grounds of refusal we observed that the fourth ground, namely that the proposal is contrary to the single dwelling restrictive covenant affecting the site, is not really a relevant consideration as to whether on planning grounds the development proposal should be approved or not. The fact that other permissions or consents or licences might be required to allow a proposal to proceed is not a reason why a particular other consent or permission, such as this planning development permission, should not be granted. If permission A is refused because of a lack of permission B, and B is refused because of the lack of A, then the proposal cannot proceed even although each such permission may be appropriate. This accords with a decision we made when sitting together in 1994 in the case of Swintons Pty Ltd v Melbourne CC, Appeals 1993/57829 and 1993/68123 noted at [1994] 13 AATR 16 which case was referred to in the course of the hearing. It is confirmed in the more extensive analysis of the interrelationship between restrictive covenants and normal planning considerations expounded in the more recent case of Zullaphela Pty Ltd v Stonnington CC (1998/94208) noted at [2000] 3 VPR 248 and at [2000] Planning News Volume 26 No. 2 page 17 in which case the present presiding member sat with Ms M Withers, member.

8. Many points frequently argued in development cases of this sort were not in issue in this case. The proposal in fact demonstrates substantial, and in our opinion satisfactory, compliance with the purposes and intent of the Good Design for Medium Density Housing, Revision No. 2. We note, by the way, that overlooking and overshadowing would be minor and able to be satisfactorily dealt with, where necessary, by the imposition of suitable conditions. We noted what we considered to be suitably designed and well located living areas with northern aspect and relationship to outdoor private open space areas likewise taking advantage of northern exposure. Some criticism was sought to be raised in relation to the ground floor living room of Unit 2, and its access to northern light. Although we recognised that this aspect of the proposal is less ideal than the equivalent exposure in relation to Units 1 and 3, we nevertheless concluded that it was quite satisfactory.

9. We rejected the notion that the mere presence of a two storey element or development, set amongst single storey dwellings, is an indication of a development that is out of scale and out of proportion with its neighbours. Single and two storey developments can normally be associated in close proximity to one another whilst retaining appropriate scale and form. In this instance the only two storey element is the upstairs portion of Unit 2, the central dwelling. This element is much smaller in floor space than the ground floor below and is more amply set back from the adjacent boundaries. We considered this to be acceptable.

10. A complaint, raised in the Responsible Authority's case, in relation to the proposal for two driveways and crossings at either end of the street frontage was withdrawn by Ms Moser when she appreciated that an error had been made in relation to the width of the frontage. At 21.7m this frontage is wider than the minimum specified in a local policy document suggesting that double crossings should be avoided on narrower frontages.

11. We found the proposal to be quite appropriate and acceptable having regard to streetscape and general neighbourhood character including the height of development, bulk and setback (including, in particular, front setbacks from the street boundary).

12. The amenity impacts on adjoining properties would be, in our opinion, minor and acceptable. That does not mean that there would be no minor detrimental impacts. No proposal is ideal from every point of view and many acceptable proposals nevertheless occasion a minor degree of amenity detriment. In this case we regard impacts, such as the bulk and presence of the two storey element of Unit 2 and the existence of Units 2 and 3 on the rear part of the land where they relate more closely to the private open space areas of adjoining properties to the rear and across the eastern and western boundaries as acceptable. The western side boundary of the site is common with the rear boundaries of three properties fronting Highland Avenue. The garage for Unit 1 and a portion for Unit 3 are built to side boundaries. This will occasion some minor shadowing at some hours of the day but, as we have said, we had no real difficulty in determining that the proposal is acceptable from the point of view of amenity impacts on adjoining properties.

13. So far as the restrictive covenant is concerned, we concluded that we were obliged to refuse that application because of the legal impediments imposed on granting such permits by s 60(5) PE Act. This rather difficult, and now much discussed provision reads as follows:-

(5) 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.

14. The proper interpretation and application of this sub-section has been discussed in a number of cases referred to in the course of the hearing. In particular we note Wilde v Moonee Ponds CC & McKay [71] 18 AATR 145; Grisby & Sansom v City of Greater Geelong [1997] 21 AATR 11 at 28; Carabott & Ors v Hume CC & Scuderi [1997] 22 AATR 261 and Pateras v Monash CC, Knowles & Ors, unreported 1998/47372 and 1998/47383. We might add, as also being relevant, particularly in relation to s 60(5)(b), Carson Simpson Pty Ltd v Maroondah CC, Kelly & Ors [1998] 1 VPR 132.

15. Ms Moser, in her written submissions in relation to this sub-section made reference to the Minister's Second Reading speech when the sub-section was introduced into the Act, and to his references in that speech to "dead wood covenants". The notion in the speech was that the mode of removing or varying restrictive covenants afforded by planning permit applications (as distinct, for example, from planning scheme amendments or applications to the Supreme Court under s 84 of the Property Law Act) would now, with the introduction of sub-section (5), only be applicable to what he described as "dead wood covenants". She then sought to expound the meaning of the phrase "dead wood covenants" with a view to arguing that the covenant applicable in this case was not one of them. In this respect she directed her analysis and interpretation to the wrong point. What must be interpreted, understood and applied is not a figure of speech used by the Minister in Parliamentary debate (even if in a second reading speech), but rather the actual terms of the particular provision enacted by Parliament. It is the actual terms of sub-section (5) that have to be interpreted and applied. It is not a matter of picking out a colourful phrase in a speech and treating it as if its words appeared in the enacted section.

16. Mr Stewart repeatedly referred to what he called the approach taken to s 60(5) by our colleague, Mrs Julia Bruce, Deputy President, in the unreported case of Pateras v Monash CC & Knowles referred to above. Before considering this submission it is relevant to note the situation in the present case so far as objections are concerned. There were six objectors to the application for a permit to vary the covenant who were the owners of benefiting land. Four of them subsequently signed a document purporting to withdraw such objections. The document of the 27 March 2000 comes long after the Notice of Refusal in this matter issued by the Responsible Authority on the 6 December 1999. The two other objector owners of benefiting land namely Mr A Maditianos and Mrs M Maditianos, did not withdraw their objection. It appears from the evidence that they were probably asked to withdraw, or sign the withdrawal document, and refused to do so. However, we think it is sufficient, for present purposes, that they did not sign the withdrawal document and took no other similar steps.

17. We note, by the way, that the terms of this document were as follows:-

We, the objectors in relation to an Application for variation of a single dwelling covenant contained in Instrument of Transfer No. 2726646 relative to Certificate of Title Volume 2483 Folio 856589 hereby withdraw our objection to the Variation following discussions with the Applicant.

18. It was not necessary for us to consider whether a document in these terms satisfied the rather different terms in the first set of brackets in sub-section (5)(a) in relation to written consent of benefiting owners to an application for a permit to vary a restriction. That is because, even if the four signing objectors drop out of the picture, the other two remain.

19. Mr Stewart's argument in relation to Pateras' case seemed to suggest that we did not need to worry about s 60(5) in circumstances where no benefiting owner or benefiting owner objector appeared at the review before the Tribunal. He sought to rely on paragraphs 151 and 152 of the reasons given by Mrs Bruce in the Pateras decision. The passage, starting at the bottom of page 32 of the reasons attached to her determination reads as follows:-

151. I do not consider that any benefiting owner who is not an objector represented at this hearing is likely to suffer detriment from the proposed variation. It is relatively easy to come to that conclusion with respect to the benefiting owners who made no objection to this application. All were notified of the application, and if they did not consider that they would suffer any detriment justifying an objection of (sic) their part, I see no reason to pursue the matter. My conclusions on the evidence and from my own inspection of the area do not reveal anything that I regard as anomalous or which causes me to feel obliged to investigate the position of any such benefiting owner any further.

152. The second aspect of Section 60(5) of the Act is the one on which attention must be focused in this case. There are people having the benefit of the covenant who have objected. The applicant therefore sought to prove that no such person would be likely to suffer any detriment of any kind.

20. After setting out that quotation Mr Stewart said:-

1.5 Provided that the Tribunal agrees that Mrs Bruce's approach in the Pateras decision is correct two possible scenarios arise:

(a) the Tribunal in conducting a de novo (anew) hearing has not received grounds from any benefiting owners of the Restriction. It follows from this that the Tribunal need not consider section 60(5)(a) of the Act further, section 60(5)(b) of the Act is not relevant, and should conclude that as it is satisfied with respect to section 60(5) there is no bar to a planning permit issuing for the variation sought subject to the other usual considerations and discretions with respect to the issuing of a planning permit; or

(b) the Tribunal considers that the fact that objections were lodged to the application when it was considered by the Responsible Authority means that the tests in section 60(5)(a) and (b) of the Act must also be considered by it to the extent that they remain relevant.

1.6 If the Tribunal agrees that Mrs Bruce's approach in the Pateras decision is incorrect, further possibilities arise:

(a) the Tribunal will need to give particular regard to the position of all benefiting owners in the terms of section 60(5)(a) of the Act, and technically, consider each owner individually; and

(b) depending upon whether the Tribunal considers that objections by benefiting owners are before it, consider whether section 60(5)(b) of the Act is satisfied.

21. We think that Mr Stewart has set out the correct approach that we should make in his paragraph 1.6 quoted above, although we do not think that we need to disagree with Mrs Bruce or find her decision incorrect to adopt it. Indeed we do not find it incompatible with what she was quoted as saying. We do not agree with Mr Stewart when he suggests, in his paragraph 1.5(a) that we need not consider s 60(5)(a), or to his suggestion that s 60(5)(b) is not relevant. On the contrary they are both relevant and must both be considered. As a matter of fact, we find that his case falls down on each of them.

22. In relation to s 60(5)(a) we must, in our view and in accordance with previous decisions, consider the position of all the owners of benefiting land, whether they have objected or not, except for those who have given written consent in accordance with the words within the first set of brackets. In the present case this means that, even if we disregard the four consent signatories, we must still have regard to the two non-signing objectors, and all benefiting owners who did not object.

23. The consideration that we must give is as to whether it is unlikely that they will suffer any detriment of any kind. If we find that they are likely to suffer any detriment of any kind, even a minor one, then we cannot be satisfied in terms of (5)(a) and are thus barred from varying the covenant.

24. This is a quite different exercise from that called for in relation to the development application. An application of that sort frequently calls for a balancing of pro and contrary considerations. As noted before, it is seldom, if ever, that a proposal can be brought forward that is ideal in every respect, or even a proposal does not present at least some minor detriment. That is not a test. A proposal might be determined to be acceptable because its many merits far outweigh its few minor detriments. Indeed that is the very exercise we carried out in coming to our conclusion in relation to the development proposal in this case.

25. The approach must be quite different under s 60(5)(a). In relation to a non-consenting owner of land benefiting from the covenant, including all such owners whether or not they have objected, and whether or not they have appeared at the review hearing before the Tribunal, consideration must be given as to whether there is any detriment of any kind; whether or not there are countervailing or outweighing benefits of other sorts to other persons, or even to those owners themselves. The expression "any detriment of any kind" is a very wide one indeed, whether or not the bracketed words following it add anything to it. Unless it is unlikely that any benefiting owner will suffer even a minor detriment of any kind, we cannot modify the covenant.

26. In this case we find it likely that at least some benefiting owners will suffer some, though minor, detriments. For example, the house fronting the east side of Highland Avenue being the third from the corner with Sunburst Street shares approximately half its rear boundary with the review site. The common boundary is the rear portion of the western side boundary of the review site. Most of the common portion of this common boundary is proposed to have a wall of the single storey Unit 3 constructed on that boundary with no setback at all. This will occasion some closing in of that boundary, some restriction of prospect from part of the adjoining backyard and some shadowing of that backyard. These affects are all minor and, in our opinion, acceptable from a town planning point of view. They are nevertheless minor detriments and because the neighbouring property concerned enjoys the benefit of the covenant, that circumstances bars the proposed modification. A similar, but even smaller detriment will arise in relation to the neighbouring property on the eastern boundary where the garage wall of Unit 1 would be constructed on the common boundary. These minor detriments are not just likely, they would, in our view, flow from a development made pursuant to the proposed modification to the covenant. An analogous situation applies in relation to private rear open space areas of both the adjoining property to the east and the adjoining property to the west immediately to the south of the premises on that side that we have just been discussing. On each side there would be some impact from the two storey element of Unit 2, and even the existence of a dwelling at all in the position of Unit 2. We have no difficulty at all in coming to the conclusion that these affects are acceptable from a town planning point of view and that the development permit should be granted in spite of them, but when we come to consider s 60(5)(a), and the position of the benefiting owners of these lands, we are compelled to accept that minor detriments will occur. There will be detriments that satisfy the description of "any detriment of any kind". We have no discretion to disregard them just because they are minor or because they are outweighed by other considerations or because they are acceptable in terms of amenity or neighbourhood character or other planning considerations. The result is that the covenant modification proposal is barred by s 60(5)(a).

27. We do not see that we have occasion to come to a different "approach" to Mrs Bruce. We think she adopted the same approach. She was obliged to consider whether any benefiting owner (whether or not an objector) was likely to suffer any detriment of any kind from the proposed variation. On the facts of her case she made a finding of fact that there was no such likelihood. She expressed her findings in the first sentence of her paragraph 151, at least in relation to non-objecting benefiting owners. She made a finding, as we would understand it, on the evidence, that such owners were not likely to suffer detriment. She did not make this finding because they had not objected, or because they were not represented; and she did not disregard their position for those reasons. It perhaps made it easier for her to come that conclusion, when benefiting owners had been notified and had not seen fit to object. She did not feel herself to be put on inquiry or obliged to go looking for a case that was not obvious on the evidence before her and which benefiting owners had not seen fit to pursue, but ultimately there is no more in her paragraph 151 than her finding on the evidence in the case before her. We have made a different finding on the facts of our case.

28. To reiterate, her decision does not turn on the fact that, in her case, no benefiting owners objected. She said that circumstance made her task easier, and no doubt it did. She noted that they had all been informed and, in effect, if they did not object where she found no likelihood of detriment, she saw no reason to go further in pursuit of the matter. The essential thing is that she considered the question and came to her own view on the evidence. In our case, and on its facts, we have considered the question and immediately see detriments to benefiting owners which, although minor, are more than just likely. The absence of objection does not mean that such detriments have suddenly disappeared or become unlikely. Indeed we find them to exist whether or not such owners objected or appeared.

29. In any event, we also find that this application for a permit to modify the permit is barred by s 60(5)(b). We agree with the view taken by one of us (Mr Byard) in both the Wilde and Carson Simpson Pty Ltd cases cited above, to the effect that paragraph (b), where it applies, is a bar, even if (a) is satisfied so as not to be a bar. A proposal can be barred by (a) or (b), or both of them. The Responsible Authority, and on review this Tribunal, is only freed to modify covenants where it is satisfied, not only in relation to (a), but also in relation to (b). (See Carson Simpson Pty Ltd case).

30. This second requirement, that in s 60(5)(b), only applies where an owner of land benefiting by the covenant has objected. Objected here means, and must mean, someone who has objected to the application under s 57 PE Act by lodging a written objection with the Responsible Authority. The Act does not afford any other relevant opportunity to object. In particular, it does not afford an opportunity to object (or fail to object) to this Tribunal. Objections to permit application are made, and only made, to the Responsible Authority.

31. In this case there were six such owners. There are probably still six, but we do not need to decide whether the four signers have fallen by the wayside, because the two simply have not. At the very least we have two owners of land benefited by the covenant who have objected to the grant of the permit.

32. Mr Stewart sought to advance an argument that we must confess we found a little difficult to follow. It seemed to suggest that someone who had admittedly objected to the Responsible Authority against the grant of a permit, somehow ceased to be such an objector if the Permit Applicant applied to this Tribunal for a review of a refusal and the objector, in spite of having been given notice of the application for review, failed to lodge a statement of grounds and/or become a party and/or appear at the review hearing. Such circumstances, Mr Stewart appeared to argue, meant that an owner who admittedly had objected to the grant of the permit somehow ceased to be an owner, or ceased to have objected, even though that is exactly what he or she was and exactly what he or she had done. The argument, as best we could understand it, meant that the expression "owner [who] has objected to the grant of a permit" in s 60(5)(b) is to be read down, in such circumstances, to the extent that the words would no longer mean what they say, but rather the opposite. We think that any such significant qualification of what the paragraph actually says would have had to be specified in the terms enacted by the Parliament, and that they are not to be implied by any failure to give a statement of grounds or failure to appear. We think it is not right to read down the words as suggested.

33. Indeed, if a benefiting owner has objected, and is confident that the exceptions in relation to vexatiousness and lack of good faith could not be made out in relation to his or her objection, then, on a proper interpretation of s 60(5)(b), or at any rate, upon the interpretation that has been adopted in the authorities cited; such objector could rest content on the objection. He (or she) might perfectly reasonably say to himself (or herself): I, who am an owner of land benefiting, have made an unvexatious objection in good faith and so, by virtue of s 60(5)(a) have no occasion to give a statement of grounds or appear at a Tribunal hearing because what I have done already is a complete bar to the modification sought. Such an objector could take the view that he (or she) will trust the Tribunal to recognise this situation and that he (or she) need do nothing more except, possibly, take some action in the Supreme Court in the event of the Tribunal making a mistake in law by attempting a modification.

34. In deference to Mr Stewart we also observed that he had come late into a restrictive covenant case containing difficult, we think insoluble, problems where he was obliged to do the best he could. We passed some complimentary remarks on the imaginative and courageous attempt he made to establish a very difficult case.

35. The only remaining aspect was for us to consider whether either of the exceptions in s 60(5)(b) applied. Mr Stewart frankly admitted that he could not justify a suggestion that the objection of Mr and Mrs Maditianos was not made in good faith. That left vexatiousness as the only other possible exception.

36. In relation to this he referred to vexatiousness in the sense of something done only to annoy (which might not be distinguishable from lack of good faith) and the notion of vexatiousness in the sense of an objection that was so obviously untenable and unarguable that it should be regarded as an abuse.

37. In this connection reference is made to the objection document lodged by Mr and Mrs Maditianos with the Responsible Authority. Their objection made reference to them being enticed to the area because they were attracted by the open space living and that they were reassured by the area being "zoned for single dwellings". It is not quite true to say that it was zoned in such a way, but this is clearly a slightly muddled attempted reference to the single dwelling covenant. This and later references to the proposed development not fitting with the area or the character of the area with references to traffic noise, pollution and open space disclose a weak, but arguable case that might be advanced, even in relation to the development permit. There is a big difference, in terms of vexatiousness, between a weak but arguable case on the one hand, and one that is hopeless and unarguable one on the other. It is only the latter that is vexatious in the sense under discussion. We would not regard such an objection, even it had been raised in relation to the development application, as vexatious such that it should be struck out or regarded as an abuse, even though the case would be weak and difficult to argue and ultimately unsuccessful. Having regard to the greater stringency of s 60(5)(b), we would not regard the objection as vexatious in the sense of being unarguable. It raises the question of neighbourhood character and there is an arguable case in relation to detriment by adverse affects on or incompatibility with an established neighbourhood character. Indeed, the Responsible Authority sought to make out such a case. An aspect of that was to suggest that the neighbourhood concerned should be confined to Sunburst Street, rather than the somewhat wider area we have taken into consideration. That proposition was certainly arguable. A case based on neighbourhood character and detriment in relation thereto was arguable on the basis of the objection. It is not vexatious on the basis of untenability or unarguability.

38. One further thing in relation to the development application. Mr Keen, who was the town planner called to give evidence on behalf of the Applicant, suggested a series of minor amendments to the draft conditions attached to the submissions made on behalf of the Responsible Authority. Although not decisive as to whether a permit should be granted, we considered his suggestions to be reasonable, though modest, improvements on the proposal and we think it appropriate to take account of them by means of modifications to the suggested draft conditions.

39. In addition to its suggested draft conditions the Responsible Authority proposed the inclusion of two notes at the foot of the conditions. The first of these is more appropriately included as a part of the condition to which it relates. The second proposed note would not be a part of the conditions or a part of the permit, but may be included as information in the following terms:-

"Note: Engineering permits must be obtained for new or altered vehicle crossings and for new connections to Council drains and such works will require inspection and approval by the Council."

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