The new permit condition 8 shall read as follows:

8a. For the avoidance of doubt, as at 8 December 2004, the new lot 2 created by this permit is subject to two restrictive covenants (being the covenants set out in Transfer No. 2093893 and Transfer No. 2093894) and as at 8 December 2004 the "one dwelling per lot" restriction set out in the covenants applies to the whole of the land described in Certificate of Title Volume 10493 Folio 619 (being the "parent title" from which the permit allows the creation of the two new lots 1 and 2).

8b. With respect to the new lot 2, the permit holder (from time to time) must provide any future purchaser of lot 2 with a copy of this permit, prior to the purchaser entering into any contract of sale to purchase lot 2.

8c. If the covenants are either deleted or amended so as to allow a dwelling to be built on both of the new lots 1 and 2 pursuant to this permit, then these conditions 8 (a), (b) and (c) shall no longer have any effect.

In relation to the appeal against the proposed condition 1 in the permit, this condition is allowed and the proposed condition 1 must be deleted.

The Responsible Authority must within 28 days of the date of this order provide the permit holder with a revised version of the permit, which is otherwise identical to the original version of the permit, but which incorporates the changes set out above.

1

This is an appeal under s.80 of the Planning and Environment Act 1987 against the "restrictive covenant" permit note at the end planning permit No. M/2004/250 dated 2 August 2004 ("Permit"), together with an appeal against condition 1 of that permit.

2

Condition 1 of the permit provides as follows.

Before the plan of subdivision can be certified, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application (or some other specified plans) but modified to show:

(a) show a restriction on the plan of subdivision submitted for confirmation that achieves and provides for the following:

•

a hatched area that extends to the drip lane of the existing Oak on the eastern boundary of lot 2;

•

that no buildings or works (including alterations of the natural ground level) occur within the hatched area without the written consent of the Responsible Authority;

•

all works must be sympathetic to the protection of the root system of the tree.

3

The contentious planning permit note regarding the restrictive covenant is as set out below.

Council advises that a restrictive covenant exists on title, and prior to the construction of any dwelling on the subject land, a variation of the restrictive covenant to allow the construction of a dwelling on the land will be required.

4

During the hearing of this matter I was provided with written submissions by both Mr James and Mr Easton, and I was also provided with a variety of useful plans and photographs of the site.

5

The subject land is located in a residential area at 239 Dorset Road, Croydon.

6

The permit essentially allows the subdivision of what is currently the backyard of the subject land, to create a new second lot (being shown as "Lot 2" on the Plan of Subdivision).

7

From the photographs provided to me, the locality is generally fairly leafy and attractive. In relation to the subject land itself, the backyard area which is proposed to become the new lot 2 is quite bare, with only two trees being located within this area (an attractive Elm tree located close to the existing dwelling, together with an existing Oak tree near to the back fence).

8

Close to the back fence is a number of other large and attractive trees, which are considerably larger than the subject Oak tree at the back of the subject land.

9

The written submission by Council further confirms that the subject land is located on the east side of Dorset Road, has an overall site area of 1003 square metres and "the surrounding neighbourhood character is a mix of properties, developed with residences in varying architectural style. The general streetscape could be described as lawn, garden development with numerous canopy trees. Generally buildings in the area are well set back, and single storey and cars are generally parked beside or behind houses, not in front. ..... Generally buildings are separated from each other."

10

The permit allows "the land to be subdivided into two lots in accordance with the endorsed plans". As mentioned, this essentially allows what is currently the back yard of the subject land to be converted into a new lot.

11

It is common ground that there is currently a one dwelling per lot restrictive covenant which affects the subject land. Accordingly, this restrictive covenant will need to be "watered down" or removed prior to any second dwelling being built on the proposed new lot 2.

12

Mr James advised me that Council had taken legal advice from Maddocks Solicitors whether the granting of the permit by Council breaches this restrictive covenant. He advised me that the advice from Maddocks was that as the permit simply allows the subdivision of the subject land into two lots, rather than actually authorising any development of a second dwelling, then the view of Maddocks is that the granting of the permit does not breach the relevant restrictive covenants. I agree with this analysis.

13

The subject land is zoned Residential 1, as is all of the surrounding residential properties.

14

The land is also subject to a Significant Landscape Overlay No. 3.

15

In the course of the hearing, Mr James referred me to the objectives of the Residential 1 Zone, together with the objectives of the Significant Landscape Overlay No. 3. He also referred to the general clause 65 decision guidelines.

16

In terms of the relevant State and Local Policies, they are principally clause 16.02 of the State Planning Policy dealing with medium density housing, together with clause 21 of the Council Municipal Strategic Statement (dealing with residential land uses), clause 21.07 (Image and Urban Design), clause 21.08 (Residential Land Use) and clause 22.03 (Residential Areas Development Policy).

Findings Regarding Contentious "Restrictive Covenant" Permit Note

17

During the hearing there was various discussion regarding the existing "permit note" in bold at the bottom of the permit. Mr Easton (on behalf of the Permit Applicant) put to me that the restrictive covenant situation is quite complicated, in that there are two different (although largely similar) restrictive covenants which affect the subject land, together with all the usual complexities that go with restrictive covenants. Apart from querying whether any permit note was needed at all, Mr Easton's "fall back position" was that the permit note has been drafted in a poor fashion, in going beyond a "statement of fact" to actually recommending necessary action which the Council believes needs to be taken before any dwelling is constructed on the new lot 2. In other words, Mr Easton put to me that in the circumstances, it is unnecessarily risky and inappropriate for Council to be effectively providing advice to any potential purchaser (with there being no guarantee that this advice is correct) as to the practical effect of the restrictive covenant.

18

In response, Mr James on behalf of Council expressed concern that, without some of additional "warning" to a perspective purchaser, a perspective purchaser of the new lot 2 may not necessarily realise that the restrictive covenants need to be varied before a new dwelling can be purchased on lot 2. Mr James conceded that although there is a "buyer beware" argument here, he indicated that in his view there may be many members of the public who are not necessarily "savvy" enough to appreciate the practical implications of the restrictive covenant.

19

On balance, I prefer the submissions of Mr James, and I consider there is a good case that some form of warning should be given in the permit regarding the implications of the restrictive covenant.

20

On the other hand, I accept the submissions of Mr Easton that the current permit note seems drafted in a rudimentary fashion. Furthermore, I consider that as there are important matters in question here, it seems incongruous that the issues are being dealt with by way of a "permit note" rather than a proper permit condition. In this regard, I am also mindful of the tradition of reluctance by the Tribunal to allow permit notes.

21

In all the circumstances, it seems and fair and reasonable to me that the existing contentious "permit note" be converted to a more comprehensive and better drafted permit condition. This new permit condition set out in my Orders above seems a reasonable compromise, in that it is more a "statement of fact" as to the current situation as at the date of this order, together with imposing a requirement that any future purchaser of the new lot 2 must be provided with a copy of the planning permit. However, in view of the fact that the restrictive covenants in question may over time "be watered down" or deleted so as to allow a second dwelling on the new lot 2, the new planning permit includes a sub-condition which provides that the new condition dealing with the restrictive covenant will be of no effect if such "watering down" or removal of the restrictive covenants occurs at a future stage.

22

I have set out above the contents of the existing permit condition 1.

23

In summary, this permit condition 1 provides that a restriction should be imposed on the new plan of subdivision, with this restriction effectively prohibiting any buildings and works within the "drip line" of the existing Oak tree at the back of the subject land, without the written consent of the Responsible Authority. Furthermore, it is provided that "all works must be sympathetic to the protection of the root zone of the tree.

24

In this regard, Mr James argued during the hearing that the relevant Oak tree is one of only two trees located on the new lot 2, and accordingly, it is important to provide good protection for this tree.

25

In response, Mr Easton put to me that it was common ground that pursuant to the Significant Landscape Overlay No. 3 control, a planning permit will be required anyway if the Permit Applicant wishes at a future stage to remove the Oak tree. In this regard, he advised that his client had not yet reached any view whether or not the proposed Oak tree needs to be removed to facilitate a new dwelling on the new lot 2.

26

In essence, Mr Easton put to me that it is a "over kill" to impose a restriction on the plan of subdivision protecting the Oak tree, when the Oak tree already has substantial protection by way of the requirement for a planning permit before it can be removed, pursuant to the Significant Landscape Overlay No. 3.

27

In particular, Mr Easton submitted that it potentially creates an incongruous situation where there is a notation on the plan of subdivision protecting the Oak tree, whereas in fact at a later stage the permit holder may obtain a planning permit to remove the tree and the tree is cut down, thereby making the subject matter of the notation on title "redundant".

28

Having considered the submissions of both parties, I prefer the submissions of Mr Easton. I accept his point that there is already a substantial degree of protection in the sense of a planning permit being required for the removal of the subject Oak tree pursuant to the Significant Landscape Overlay No. 3.

29

I also rely here on the fact that the contentious Oak tree at the back of the new lot 2 appears (from the photographs) to be a significant but not quite "spectacular" example of this type of Oak tree. Furthermore, it was common ground at the hearing that the contentious Oak tree has nearby a number of larger canopy trees on the adjoining properties, with the practical result that, when the contentious Oak tree is viewed from the street, it tends to be visually "overshadowed" by these other larger canopy trees.

30

In this situation, I am satisfied that the "leafy character" of this part of Dorset Road will not be unduly threatened if the contentious Oak tree was removed in the future, and in any case I am satisfied that there is a proper "due process" to be followed before any such removal can occur, in the form of the existing Significant Landscape Overlay No. 3.

31

For all the reasons set out above, I have concluded that it is fair and reasonable that the proposed condition 1 be deleted (see my orders above).

32

However, in reaching this conclusion, I wish to make it clear that I am not making any judgement either way as to the merits of the removal of the contentious Oak tree (given the view which I have reached, this will be an issue for another day). In this regard, I note that each party has obtained an arborist report regarding the contentious Oak tree. While there was some differences of interpretation as to the role of the contentious Oak tree and the locality, it appears to be common ground between the two arborists that the contentious Oak tree is in a quite healthy condition.

33

I note that there was some criticism from Mr James that the Permit Applicant has effectively taken a "sneaky" approach in applying for the two lot subdivision, without concurrently making a decision whether or not the contentious Oak tree needs to be removed, and "if so" also seeking a planning permit for the removal of the Oak tree. In response to this, Mr Easton simply advised that his client had not yet reached any view whether the Oak tree needs to be removed, and he submitted it is reasonable to simply leave this as an issue for another day.

34

In terms of my own view on this issue, although I am generally satisfied that the proposed condition 1 is unnecessary and the parties can simply rely on the requirements of the Significant Landscape Overlay No. 3, I do make the point that in these circumstances the Permit Applicant simply has to "take its chances" under the normal planning processes if at a later stage the Applicant seeks a permit to remove the contentious Oak tree under the Significant Landscape Overlay No. 3. In other words, given that the Permit Applicant has not "shown its hand" in relation to the contentious Oak tree but in the meantime has had the benefit of obtaining a planning permit for the subdivision of the subject land into two new lots, it seems to me that it would be inappropriate and mischievous for the Permit Applicant to later seek a planning permit for the removal of the contentious Oak tree, in circumstances where the Applicant uses the granting of the permit for the two lot subdivision as part of the Permit Applicant's "ammunition" for seeking a permit for the removal of the contentious Oak tree.

35

In my view, the more appropriate position is that whether or not a permit should be granted for the removal of the contentious Oak tree is a separate issue which should be judged on its own merits at a later stage, if this is the direction which the Permit Applicant takes.