This application for review is refused and the decision of the responsible authority to refuse to grant a permit is affirmed. No permit is granted.

Mr Tony Walsh, town planner of the City of Wyndham, appeared for the Responsible Authority. He presented written and oral submission.

Ms Suzie Trajkovski appeared in person for herself and for John Trajkovski. She presented written and oral submission.

Ms Liduina Filippone appeared in person for herself and for D Filippone.

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

Application under s 77 of the Planning and Environment Act for review of a decision of the responsible authority to refuse to grant a permit.

Residential 1 zone under the Wyndham Planning Scheme.

• Application No WYP1899/08 lodged with Wyndham City Council is in accordance with the requirement of Section 60 Planning and Environment Act.
• The variation of the restrictive covenant is unlikely to cause any detriment of any kind to any owner of land benefited by the restriction.
• The Responsible Authority did not consider Section 55[1] of the Wyndham Planning Scheme at the time of reviewing Application No WYP1899/08.
• The subject land contained in Application No WYP1899/08 forms part of Melbourne's Urban Growth Zone introduced by the Premier and therefore the Responsible Authority should have taken this into consideration.

1. In this case the permit applicants seek a variation in the terms of two restrictive covenants that attach to the title to their land. The responsible authority has refused to grant a permit for such variations. Ms Filippone, and D Filippone, objected to the grant of a permit and now support the responsible authority in its decision to refuse to grant a permit.
2. The land in question is on the southwestern corner of the intersection of Grevillea Crescent with Palm Street. It has a frontage to Grevillea Crescent of 20 metres and a side abutment to Palm Street of 37 metres. With an area of 732m2, it is a reasonably substantial residential block. However, it is generally in accordance, in terms of size, frontage and shape, with other surrounding allotments created by a common subdivision.
3. The objector, Ms Filippone, lives in a house on an allotment on the opposite side of Grevillea Crescent. Her house is not quite directly opposite the review site. Her property shares a common boundary with the neighbouring property to its north. This neighbouring property is directly opposite the review site.
4. At this stage the area is substantially built up, predominantly with single storey detached houses like that on the property of Ms Filippone.
5. There is a single storey house on the review site. It is set well forward on its block, towards its Grevillea Crescent frontage. In fact the rear part of the allotment is fenced off from the house so that, instead of having a substantial backyard, the house has a much smaller backyard with a vacant area fenced off behind it. This vacant area looks as if it could be the site for a house. In terms of land title however, it is part of the allotment upon which the house standing on the review site is built.
6. This unusual arrangement reflects a longstanding ambition of the applicants to construct a second dwelling on their property.
7. In 1999 they made an application to the responsible authority for a permit for two dwellings. The responsible authority refused the application. Mr and Mrs Filippone were objectors. Mr and Mrs Trajkovski appealed to this tribunal.
8. The resulting case Trajkovski v Wyndham CC and Filippone[2] was heard on 28 February 2000. The decision of the tribunal was to grant a permit subject to conditions. That permission was the construction of the two dwellings, not for variation or removal of any restrictive covenant.
9. There is now as there was then a restrictive covenant, indeed two restrictive covenants, preventing the construction of two dwellings on the site. In those days it was open to the tribunal to grant permission for a development of two houses, even if such a development was contrary to a restrictive covenant. The law has since been changed. Section 61 (4) of the Planning and Environment Act 1987 (PE Act) now provides that a permit cannot be granted in those circumstances.
10. To lawfully construct the second dwelling however, it would have been necessary for the applicants, even then, to obtain the removal of, or some amendments to the restrictive covenants to allow lawful construction of the second dwelling.
11. In the event, only one house has been constructed on the land. No planning permit was required for that. In the meantime, the permit granted by the tribunal in relation to that earlier case has expired.
12. At the time of that earlier hearing there had been a second proceeding afoot in relation to an application to remove or vary the restrictive covenants. However, it did not proceed, the applicants, on the advice of the barrister appearing for them, having decided to withdraw it.
13. I understand that a subsequent application for a permit to remove or vary the covenant was made and discontinued. In any event, there has been a further case before the tribunal in that connection. This subsequent case concerned the same parties as the present one although A & L Rollinson were fellow objectors, along with Mr and Mrs Filippone. The name of the case was Trajkovski v Wyndham CC, Filippone and others being tribunal number P5081/2001. It was heard by the tribunal on 13 June 2001 with a subsequent written determination dated 3 August 2001.
14. That case was a review by the Trajkovskis of a decision of the Responsible Authority refusing to grant a permit for the removal or variation of the restrictive covenant, or I suppose, more correctly, the restrictive covenants. The decision of the tribunal was to dismiss the application for review and to affirm the decision of the responsible authority to refuse to grant a permit. Reasons for that decision were attached to the determination in the document dated 3 August 2001.
15. I will need to say something further about that case, but first I will refer to the terms of the restrictive covenant.
16. I have mentioned that there are two restrictive covenants. Both are referred to as encumbrances on the title to the review site land. However, before referring to the terms of the covenant I should observe that both covenants are in the same terms.
17. The first of them is to be found in Transfer of Land R341676C. That transfer of land is dated 8 May 1991. The date is significant because it is before 25 June 1991. Section 60 PE Act imposes constraints on the granting of planning permission for the variation or removal of restrictive covenants. The relevant provisions are found in subsections (2) to (7) respectively of that section. However, there are two different sets of constraints that apply. Those set out in subsection (2) apply to restrictive covenants created after 25 June 1991, but the constraints in subsection (5) apply to restrictive covenants created before that date.
18. Both the subsections set out things that the responsible authority, or this tribunal on review, must be satisfied in relation to before there is power to grant a permit to vary or remove a restrictive covenant. The constraints in subsection (5), applicable to restrictive covenants created before 25 June 1991, are much more severe and much more restrictive than those in subsection (2) that apply to restrictive covenants created after 25 June 1991.
19. It is apparent, from the terms of subsection (5), its context in s 60, and from the second reading speech of the minister when it was introduced into the Act; that it is intended to be very restrictive. There was talk, in the second reading speech, of it being only applicable to so-called "dead wood" covenants. It appears that the provision was intended to prevent amendment or removal of covenants created before 25 June 1991, except if there is no opposition to their removal. That somewhat overstates the position, but it is difficult, indeed very difficult for an applicant to satisfy subsection (5), especially if an objection is lodged. Of course, in the present case, as with the second tribunal case referred to above, there is an objection.
20. Of the two covenants that apply to this land, the first was created before 25 June 1991, and the second was created after that date.
21. Although the applicants might have a reasonable prospect of success if only the second restrictive covenant applied, that avails them little in present circumstances because removal or variation of the second covenant would still leave them confronted with the first covenant. If they cannot deal with the first covenant in a way that allows their second dwelling, they are prevented by the covenant from constructing the second dwelling, and by s 61 (4) PE Act, from obtaining a permit for the second dwelling. Such a permit would be required under cl 55 of the planning scheme.
22. The first covenant provides that the purchaser in relation to that transfer of land covenants as follows:
    • (a) THAT I/we will not at any time hereafter erect or build or cause or suffer to be erected or built on any lot hereby transferred or on any part or parts thereof more than one private dwelling house (together with usual outbuildings) and such dwelling house and such outbuildings shall not be erected of any material other than brick, stone, concrete, or brick veneer with a roof of tile, slate or colour bond type material;
    • (b) THAT such dwelling house shall not have a living floor area (excluding verandahs, carports and garages) of less than one hundred and fifteen square metres;
23. The applicants in the current case do not seek complete removal of the covenant. They are content to abide the constraints imposed in relation to building materials, roofing materials and floor area of living space. What they do seek is relief from the constraint that there can be only one private dwelling house. They want to be able to construct two.
24. The second covenant is in the same terms but was created after 25 June 1991. It appears in Transfer of Land AB134429E dated 23 October 2001. That is the transfer whereby the present applicants acquired the land.
25. The responsible authority, as it was required to do in the circumstances, assessed the previous 2001 restrictive covenant case against the stringent requirements of s 60 (5) PE Act. That subsection has two matters in relation to which the tribunal must be satisfied. It must not grant a permit, even for modification of the restrictive covenant, unless it is satisfied that the owner of any land benefited by the covenant is unlikely to suffer any detriment of any kind, including any perceived detriment, as a consequence of the removal of the restrictive covenant.
26. The requirement of any detriment of any kind is severe enough. It means that the likelihood of a small detriment, even a slight one, is sufficient to prevent an alteration to the covenant, even if there were many substantial considerations weighing in favour of such a result.
27. There has been discussion, in previous cases, as to what is meant by the words "including a perceived detriment". Does that mean a detriment that is perceived, or can it extend to a perception of detriment, even in the absence of any actual detriment?
28. It appears, from the reasons given in the previous case, that the tribunal took the second view. In any event, it was clearly not able to be satisfied that the owners of land with the benefit of the covenant were unlikely to suffer any detriment of any kind including any perceived detriment. There was no doubt in that case, as there is no doubt in the present case, that Ms Filippone certainly perceived detriment in various ways, and the same was found to be the situation in relation to Mrs Rollinson. Amongst other things, one of the detriments complained of was the appearance of the land if it was to have two dwellings on it. This was from the point of view of both objectors. Mrs Rollinson's land adjoins the southern side of the review site so that her land stood to be effected, to some extent, by the new house to be built on what would otherwise be the backyard area of the review site, adjacent to her secluded open space area.
29. The Rollinsons have moved on, but in the present case I still have to consider whether there is likely to be any detriment of any kind to any of the owners of land with the benefit of the covenant, including the new owners of the Rollinson land. That is so, whether or not they are objectors. I do observe, by the way, that it is conceded that the Filippones are owners of land with the benefit of the covenant.
30. I do not find it necessary to go step by step through each of the concerns raised by the objectors in the previous case. I suppose the reasons given by the tribunal stand for themselves, and perhaps reflect what the tribunal considered to be the more substantial considerations. In any event, the tribunal found that this first limb of s 60 (5) was not satisfied. The tribunal was prepared to refuse the application on that basis.
31. I am now faced with what amounts to a "repeat appeal". Ordinarily somebody bringing an application for the same relief in the same circumstances, where there has been a previous decision by the tribunal, must expect to receive the same result as last time, unless some material change in circumstances can be pointed to. Ms Trajkovski seeks to establish changed circumstances, but none of those changed circumstances relate to this first limb where the question of any detriment of any kind has to be considered. It does not matter if she can point to changed circumstances in relation to the second limb, which I will discuss shortly, if there are no changed circumstances in relation to this first question. There are none, and she must expect the same result in this case, irrespective of whether she can point to changed circumstances in relation to the second limb.
32. I am not satisfied that every point raised by Ms Filippone would satisfy the first limb. I think the increase in traffic, for example, would be so slight as to be imperceptible and would be unlikely to cause any detriment. However, as I have already observed, only minor or slight detriment, or perhaps perceived detriment is necessary to block an application. The question of the appearance of the land and its more concentrated development in an immediate area of single detached houses remains. Indeed, before me, Ms Filippone was most concerned that allowing a modification of the single dwelling aspect of the covenant here would create a precedent and makes it easier for a change, over time, in the single dwelling nature of the immediate neighbourhood.
33. So far as the first question was concerned, I do not think that the applicants here before me established any relevant change in circumstances and, like the previous tribunal, I am not satisfied that the high barrier in relation to detriment demanded by subsection (5) has been surmounted.
34. The application must fail for that reason, quite apart from the second limb which I will now discuss.
35. The second limb of subsection (5), where it applies, must be satisfied as well as the first limb. The responsible authority, and on review the tribunal, cannot vary or remove a restrictive covenant unless it is also satisfied, if an owner of land with the benefit of the covenant has objected, that the objection is vexatious or not made in good faith. Whilst not necessarily impossible, this is generally a very difficult thing to establish. Most objectors do object in good faith, and it is difficult indeed to show anything to the contrary. In the previous tribunal decision of 3 August 2001 the tribunal did not find lack of good faith or vexatiousness, in relation to either objector. Indeed it said it had no basis for concluding either of those things.
36. It is in relation to this aspect that Ms Trajkovski claims that there has been a change in circumstances. She relies on two matters in this connection. Her arguments relate to other properties at the western end of Palm Street where it intersects with Birchwood Boulevard. The review site, and the property of Ms Filippone are situated at the opposite, eastern end of Palm Street where it intersects with Grevillea Crescent.
37. Mr Trajkovski refers to lot 966 on Plan of Subdivision 214332W. That property is on the southeastern corner of the intersection of Palm Street with Birchwood Boulevard. It is an allotment of 788m2. Since the original subdivision by which it was created, it has been further subdivided into two lots, and two dwelling units have been constructed, one on each of those lots. The construction of a second dwelling on the original lot, or a parcel of land constituted by the original lot, even if it has been subdivided, would be contrary to a registered covenant in terms of the one applying to the review site, if such a covenant applied to the land and lot 966. One deficiency of the argument is that there is no evidence as to whether there was a restrictive covenant on that land or, if there was, what its terms were. Furthermore, there is no evidence that if there was such a covenant, that the owners of the Filippone land were the owners of land with the benefit of that covenant. Neither of these things might be true. In either event, what has happened in relation to lot 966 is irrelevant for present purposes.
38. Ms Trajkovski claims that a restrictive covenant that applied to lot 966 was varied on 6 September 1994. Again, there is no evidence as to what the variation was or what the terms of the covenant when varied became.
39. Beyond all this, there is no evidence that Ms Filippone or her husband had any knowledge of any restrictive covenant applying to lot 966 before or after its alleged variation. Indeed, she claims to have had no knowledge. Not only that, she claims that, at the time she and her husband purchased their land they had no knowledge of the units subsequently constructed on that land.
40. The argument is that the Filippones have been inconsistent in complaining about the proposed lifting of the restrictive covenant on the review site when they were aware of the situation in relation to lot 966. Clearly, that falls to the ground if they were not aware. I have no reason to doubt the claim by Ms Filippone when she says that they were ignorant of that.
41. On the northeast corner of the intersection of Palm Street with Birchwood Boulevard there is another allotment, 953 in the original subdivision, upon which there are now three units. However, Ms Trajkovski is unable to make anything of that point because the search of the title in relation to that land reveals that it is owned by the Ministry of Housing and, according to the evidence produced, has not had a restrictive covenant upon it.
42. The adjoining property to the north of lot 953 is lot 954. It has a frontage to the east side of Birchwood Boulevard. It, and lot 956, a little further to the north and also having a frontage to the east side of Birchwood Boulevard have two units upon them. Ms Trajkovski claims that she has made a search of the files of the responsible authority in relation to at least one of these lots and found that an application was successfully made to remove or modify a restrictive covenant in relation to it. She further claims that the owners of land with the benefit of that covenant were given notice of it. She assumes that this included the Filippones. She assumes without any evidence to that effect.
43. I do not make that assumption. Furthermore, even if they are the owners of land with the benefit of such a covenant, it does not necessarily follow that they got notice of the proposed amendment or removal of that restrictive covenant. The fact that there is evidence that notice was sent, is not necessarily evidence that it was received. It may be unlikely, but it is entirely possible that the notice was lost in the post, stolen from the letterbox, arrived whilst the Filippones were away or otherwise became mislaid or lost without coming to their attention. The fact that they did not object, if their land really did have the benefit of the covenant, might have meant that the proposed removal or modification could go ahead, but it does not prove that they had notice or justify any inference of bad faith or inconsistency on their part if they did not in fact receive it.
44. Quite apart from all this, I would not conclude that they were either inconsistent, vexatious or acting in bad faith if they did not object to the removal or modification of covenants in relation to these properties front Birchwood Boulevard. As I have said, they are some distance away at the other end of the Palm Street, and their frontages are around the corner in Birchwood Boulevard. Someone could well, and quite conscientiously, object to the modification of a restrictive covenant relating to a block in proximity to their own land, indeed in its immediate neighbourhood, whilst not necessarily being concerned about a proposal in relation to more remote land some distance away in another street. I do not conclude that the Filippones have been inconsistent, vexatious or acting in bad faith. In my view, there is no evidence to justify such a conclusion, and no reason to suppose any of those things to be true.
45. The changed circumstances Ms Trajkovski seeks to rely upon is that she has found out about the history of these Birchwood Boulevard lots in relation to restrictive covenants and modification thereof. She says that, although represented by a barrister at the very first of the cases I have referred to, she and her husband appeared for themselves in relation to the restrictive covenant case of 2001. On the face of it then they were responsible for the preparation and presentation of their case. She says that they engaged the services of some unspecified lawyer to assist them in preparing their submissions to present at the hearings of that case, although they themselves presented their case. She complains that the lawyer failed to make adequate title searches. Her alleged change of circumstances is that she has since made searches and found out further information that she and her husband were unaware of at the time of the previous case.
46. This does not amount to changed circumstances. The circumstances were the same then as now. The only thing that has changed is her knowledge of these circumstances. If she thinks that she has been let down by the lawyer that she engaged, that is a matter between herself and the lawyer, not something that disadvantages the responsible authority or the objector in the present case, or which even effects their situation.
47. Vexatiousness can be established by showing that the true motive of the objector was not an honest one in relation to the restrictive covenant, but made for some ulterior and improper purpose such as to simply annoy the applicant. There is no evidence of anything of that sort.
48. An objection might be held to be vexatious on the basis that it is so completely without merit as to be utterly hopeless. Some of the grounds of the objection here are weak. If the one relying on traffic was the only thing, I might conclude that it was utterly hopeless. However, I do not conclude that the objection of Ms Filippone and her husband is vexatious in this sense of being utterly hopeless.
49. Accordingly, I conclude that this application for review must fail and that the decision of the responsible authority to refuse to grant a permit must be affirmed. Like the previous tribunal, I am not satisfied in relation to the first leg that the modification of the covenant is unlikely to occasion any detriment of any sort including perceived detriment. Furthermore, I am not satisfied that there has been any relevant change of circumstance since the decision to that effect by the previous tribunal. On that point, this is a repeat appeal.
50. Apart from that, I am not satisfied that the objection lodged by Ms Filippone and her husband was vexatious or not made in good faith. Furthermore, insofar as this is a repeat appeal in relation to the second leg of s 60 (5) (b), I do not find that there is any material change of circumstance since the previous decision.
51. The application for review must fail.

[1] This really refers to Clause 55 of that planning scheme

[2] [2000] VCAT 1671