1. The subject land must be developed only in accordance with Permit No. 99/4468 issued by the Bayside City Council on 16 February 2000 and the endorsed plans which form part of that permit.

2. This permit will expire if the covenant has not been varied within two years of the date of this permit. The Responsible Authority may extend this time if a request is made in writing before the permit expires or within three months afterwards.

The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

For the Responsible Authority: Ms. J. Bowdern, Legal Support Planner,

on Day 1 and for the Directions Hearing on 16 February 2001. Mr. J. Green, Town Planner, for the Directions Hearing on 30 May 2001, and on Day 2 and Day 3.

Respondent/Objector: Mr. N. Nugent for the Directions

For the Applicant for Review/ Mr. How S Ng, Consultant Planner of

1. This is an Application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of a decision of the Bayside City Council (the Responsible Authority") to refuse to grant a permit.

2. Ms. Bowdern, in her written submission for the Responsible Authority on Day 1, described the proposal as follows:

"The application is for the variation of the existing covenant contained on Certificate of Title Vol 8152 Folio 398 to allow for two dwellings as per Planning permit 99/4468. The existing covenant states: that the registered proprietor or his or her successors in title or heirs, "... will not erect or permit to be erected on any of the lots hereby transferred any building other than one dwelling house or private residence constructed of brick or concrete with roof of tiles or slate."

"The subject site is situated on the east side of the street 80 metres north of the corner of South Road and Welwyn Avenue. The site is regular in shape, with a frontage to the street of 15 metres, a depth of 44 metres and a total area of 659 square metres.

The site currently is vacant and is adjacent to another vacant lot at number 4 Welwyn Drive. An existing vehicle crossing is located on the south side of the frontage. The site is relatively flat and contains no significant vegetation. Surrounding sites are developed with single storey dwellings. There are a variety of dwelling types in Welwyn Drive as a whole ranging from double storey dwellings, attached dwellings to dual occupancies. Welwyn Drive is a local street with no parking restrictions."

4. The subject land is in a Residential 1 Zone under the Bayside Planning Scheme.

Clause 52.02 of the Banyule Planning Scheme relates to Easements, Restrictions and Reserves. Pursuant to Clause 52.02 a permit is required before a person proceeds to under Section 23 of the Subdivision Act 1988 to create, vary or remove an easement of restriction or vary or remove a condition in the nature of an easement in Crown grant.

Section 23 of the Subdivision Act 1988

Section 23(1) of the Subdivision Act 1988 relates to the creation, removal or variation of an easement or restriction and requires: "That the owner of the land burdened or to be burdened by the easement or restriction must, in accordance with the planning scheme or permit and with the Planning and Environment Act 1987, lodge a certified plan at the Office of Titles for registration."

Section 60 of the Planning and Environment Act 1987

Section 60 of the Planning and Environment Act 1987 sets out the relevant matters for consideration. As the covenant was created prior to 25 June 1991, Section 60(5) applies to this application.

Section 60(5) states that the responsible authority must not grant a permit which allows the variation of a restriction referred to in sub-section (4) unless it is satisfied that -

"the owner of any land benefited by the restriction (other than the 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 if the owner has objected to grant the permit, the objection is vexatious or not made in good faith."

6. The Planning and Environment (Restrictive Covenants) Act 2000 imposed, inter alia, more extensive requirements for notice of applications for permits to vary restrictive covenants.

"Planning permit 99/4468 was issued at the direction of VCAT on 16 February 2000. This permit allows for 2 double story dwellings on the land. This application was originally refused by Council and attracted 1 objection. The Applicant tabled amended plans at VCAT which made minor amendments to the driveway, inclusion of bay windows at ground level and turning bay area with central garden area and relocating the entry porch to the rear dwelling.

On 16 February 2000 the Tribunal determined that the Application for review was allowed based on the amended plans an the Council's decision was overturned.

On 28 February 2000 Council wrote to the Applicant stating that planning permit 99/4468 was issued subject to the conditions set out.

At this stage Council has not endorsed the amended plans required under 99/4468."

8. Ms. Bowdern and Mr. Ng, on Day 1, both consented to me deciding questions of law, even though I am not legally qualified, pursuant to Clause 66(1)(a) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.

10. Ms. Bowdern and Mr. Ng on Day 1, in answer to a question from me, both stated that the requirements for notice set out in the Planning and Environment (Restrictive Covenants) Act had been satisfied. It seemed to me, following the hearing on Day 1, that those provisions had not been satisfied, and I called the matter on for Directions on Friday 16 February 2001. It was confirmed that the provisions of that amending Act had not been satisfied, and I therefore made appropriate Directions, which was subsequently committed to writing.

11. The written Directions were dated 28 February 2001. Those Directions required the Responsible Authority to confirm to the Applicant for Review/Permit Applicant the list of all allotments benefited by the restrictive covenant, including allotments created by further subdivision, the names and addresses of the owners of such allotments, at the cost of the Applicant for Review/Permit Applicant provide notice to all owners and occupiers of land on the list provided, and at the cost of the Applicant for Review/Permit Applicant to erect a sign on the land for 14 continuous days. The Applicant for Review/Permit Applicant was directed to publish a public notice in the prescribed form in a local newspaper, and the Responsible Authority was directed to advise which newspaper was to be used. The Responsible Authority was to advise when 14 days after the last of the notices had elapsed.

12. I considered when I made those Directions that the matter would come on for further hearing fairly quickly. The Registry Staff, at my request, made numerous enquiries as to progress with the matter. A file note dated 21 May 2001 indicates that Mr. Green of the Responsible Authority advised that he understood that the Applicant for Review/Permit Applicant had published a public notice in a local newspaper, but a copy of the advertisement had not been provided to the Responsible Authority by the Applicant for Review/Permit Applicant. I directed that the matter come on for a Directions Hearing on 30 May 2001 in an endeavour to ascertain what progress had been made.

13. At the Directions Hearing on 30 May 2001 I was satisfied that the Directions dated 28 February 2001 had been satisfied. The matter was set down for hearing on Tuesday 5 June 2001, virtually four months after Day 1.

14. Objections in response to advertising were received from Mr. M. Nugent and Mrs. P. Nugent of 28 Sunlight Crescent, and Mr. C. Vale and Mrs. L. Vale, the owners of 26 Sunlight Avenue who reside in Brisbane. Mr. and Mrs. Nugent received notice of the Directions Hearing on 30 May 2001 and Mr. Nugent appeared. Mr. and Mrs. Nugent and Mr. and Mrs. Vale received notice of the hearing on 5 June 2001, and Mr. Nugent appeared.

15. At the Directions Hearing on 30 May 2001 I directed that the Responsible Authority and Mr. Ng provide copies of their Day 1 submissions to Mr. and Mrs. Nugent and Mr. and Mrs. Vale.

16. On Day 2, there being no objection, I directed that M. & P. Nugent be joined as parties, pursuant to Section 60(1) of the Victorian Civil and Administrative Tribunal Act 1998.

17. There was a joint letter from Ms. J. Cox and others, residents of Welwyn Avenue, in response to the advertising. Due to an oversight those residents did not receive notice of the Directions Hearing or the hearing on Day 2. When this oversight became apparent I set the matter down for a further hearing on Tuesday 17 July 2001. There is a copy on file of a hearing notice to Ms. J. Cox, but there was no appearance.

18. Ms. Bowden, in her written submission for the Responsible Authority on Day 1, said that the subject permit application was advertised "to all persons benefiting from the covenant." This advertising was prior to the Planning and Environment (Restrictive Covenants) Act 2000 and, understandably, did not satisfy that Act.

"Council is empowered under section 60(5) to grant a permit to an applicant whose effect would be to remove or vary a restriction on title within the meaning of restriction defined in the Subdivision Act 1988. A restrictive covenant which seeks to prevent the construction of more than one dwelling on a particular lot, falls within the meaning of "restriction" of the Act.

However Council is prevented from granting a permit to remove the restriction, if the owner of any land which is a beneficiary of the covenant is likely in Council's opinion to suffer any detriment of any kind including any perceived detriment, as a consequence of the removal or variation of the restriction.

Council has received an objection from one of the beneficiaries of the covenant who claims that he would suffer detriment if the covenant was removed. Council having established that the objector was bona fide and not vexatious was bound by statute to refuse the permit as requested by the Applicant."

20. Mr. Ng, in his written submission on Day 1, said:

"The application was advertised. As a result, one objection was received from P. & R. Boyle of 18 Sunlight Crescent, East Brighton, some 400 metres to the north. The grounds of objection were stated to be change of character, increase in traffic and detraction from streetscape.

21. Mr. Ng cited in support of his arguments the comments of Mr. Marsden in Dennis Marsden Subdivision Services Pty Ltd v City of Heidelberg, 13 AATR 7 at page 14, and of Mr. Byard in Wilde v City of Moonee Valley, 18 AATR 145 at page 158.

22. Mr. and Mrs. Nugent, in their written objection which was received by the Tribunal on 17 May 2001, said:

"The covenant affects this property as well as ours and others in the area. In my opinion owners of land benefited by the covenant are likely to suffer detriment including perceived detriment if the variation were allowed.

This area of East Brighton has many properties benefiting from single dwelling covenants, preventing the building of dual occupancy units. These covenants are revealed to purchasers and included in sale documents when properties are sold. Many residents, ourselves included, in the area have chosen to purchase property here as they consider the covenant to provide protection from dual occupancy development. When we purchased this property one of the factors that led us to choosing this property was the covenant and the protection we perceived it afforded us. We were prepared to pay a premium for this benefit having left an area where we had been seriously affected by dual occupancy developments.

Clearly the variation of the covenant to allow dual occupancy development will cause both real and perceived detriment to the benefactors of this covenant and also to benefactors of like covenants in the area. The detriment we personally would suffer, as a result of any variation to this covenant, would result from the setting of a precedent for the area and so a loss of protection afforded by the covenant."

23. Mr. and Mrs. Vale, in their written objection which was received by the Tribunal on 20 April 2001, said:

"We would like to state that we, the owners of 26 Sunlight Crescent, East Brighton strongly object to this planning application.

We purchased 26 Sunlight Crescent in full knowledge that a covenant existed on the land that assured that only one dwelling may be erected. We feel that one dwelling on the land would, over time, enhance the land value in the area and preserve it from becoming another high density area that is definitely not in line with our original reasons for purchasing in East Brighton.

We feel that the construction of two dwellings on one block of land betrays our main reason for buying in East Brighton and makes a farce of having the covenant in the first place.

If Mr. J. Tsaousis were to be allowed to proceed with his application, we believe that this would set a precedent and that many more applications for two dwellings would then ensue."

24. Ms. Cox and others, in their written objection, said:

"The loss of amenity to established residents of Welwyn Avenue since the 1980's and before, is evidenced by the fact that between our allotments and the South Road corners, traffic congestion now presents frequently dangerous conditions outside our properties, and the local infrastructures are not suited or adequate to service the overly rapid and excessive dual occupancy developments. This change in character upon our area is quite against our wishes.

Over the past ten years all of the property development in the short section from our residences to the South Road corner has established dual occupancies, except at No. 5 Welwyn Ave. Five single dwellings have in that time been replaced by nine. To permit two dwellings at No.6 Welwyn Ave. increases replacement dwellings at low level to eleven. The drainage infrastructure to provide for that increased density of occupancy is not there. We know that flooding of the location as regards drainage is an established and recurring problem in wet periods over many years.

Apart from a volume of through traffic, often at excessive speeds traversing South Road/Dendy Street, and from busy Dendy Park side streets, aggravation of these circumstances is compounded by the vastly increasing inadequacies of curbside parking. Too frequently it is impossible for two vehicles to pass, side by side, along our roadway - particularly dangerous at our street intersection with South Road."

25. Mr. Nugent, in an oral submission at the hearing on 5 June 2001, said that real estate agents draw attention to the benefit conferred by this restrictive covenant. Mr. Nugent said that he travels on a weekly basis along Welwyn Avenue past the subject land and he would feel some detriment if the restrictive covenant were to be varied, and to two dwellings erected on the subject land.

26. Mr. Ng submitted that the subject land is 400 or 500 metres from the Objectors living in Sunlight Crescent. The subject land is on the east side of Welwyn Avenue just north of South Road. Welwyn Avenue is a north south street which runs between South Road in the south and Sunlight Crescent in the north and forms a T intersection with Sunlight Crescent. Mr. Ng submitted that detriment must be realistic and not imagined, and because of the location of the Objectors in Sunlight Crescent they had no nexus to the proposal.

27. The Applicant for Review/Permit Applicant, who was present, said that if Mr. Nugent felt so strongly about two dwellings being erected on the subject land, why hadn't he taken action with respect to two dwellings next door to the subject land, at 4 Welwyn Avenue. Mr. Nugent said that he would pursue this matter through the Council. This matter was not before me.

28. Mr. Ng spoke to a supplementary written submission on Day 2. He submitted that the Nugent and Vale properties in Sunlight Avenue were so far removed from the subject property that by any stretch of imagination they could hardly be said to suffer any detriment as provided for in the Act. He said that as a result their objection must be considered as vexatious, pursuant to what was said by Mr. Byard in Wilde v City of Moonee Valley 18 AATR 145. It would be apparent, in the light of my Decision, that I do not consider that these objections are vexatious.

29. The area benefited by this restrictive covenant is quite large. Owners of land have benefit of the restrictive covenant because the covenant provides for that. It cannot be said that people do not benefit simply because of distance from the subject land. The test set out in Section 60(5) of the Act is quite severe. It refers to "The owner of any land benefited by the restriction" and "will be unlikely to suffer any detriment of any kind (including any perceived detriment)".

30. In T. Scuderi v Hume City Council, 22 AATR 261, a Division of the Tribunal comprising Judge Wood, then a Vice President, Mr. Macnamara, Mr. Byard and Ms. Moles, considered the relevant statutory provisions and various authorities, and said at page 279:

"57. From the above the following propositions may be distilled :

(a) It is for the Responsible Authority or the Tribunal to determine whether any covenant beneficiary "will be unlikely to suffer any detriment of any kind".

(b) This determination must be made on the evidence in the instant case including the appeal site and its environs.

(c) Compliance with the Good Design Guide does not, in itself, and without more establish that a covenant beneficiary would be unlikely to suffer any detriment of any kind. The Guide represents a balancing of advantages and detriments and once any detriment is shown the application must fail.

(d) There must be a real chance or possibility that a detriment will result, mere assertion or belief will be insufficient.

(e) The sub-section requires consideration of detriments of any kind. This raises questions as to what effect a variation or removal of a covenant would have upon the amenity of the covenant beneficiaries' land. The concept of amenity includes an appeal to aesthetic judgment, which is difficult to measure, however the notion of "perceived detriment" specifically contemplates that this consideration is relevant to the inquiry.

(f) The nature of the inquiry is fundamentally different from that appropriate in an ordinary permit appeal because the former is concerned with any detriment whereas the latter, like the Good Design Guide, requires a balancing of advantages and detriments and interests between the landholders and the wider public interest.

58. The issue for the Tribunal to determine is whether it is satisfied to the requisite standard that the variation of the restrictive covenant would not, as a likelihood, cause any detriment."

31. The tests that must be satisfied, before deciding that a restrictive covenant may be varied, are far more severe than the considerations in a merits review. The Tribunal has already directed, following a merits review, that a permit be granted for two dwellings on the subject land. As was said by Judge Wood, Mr. Macnamara, Mr. Byard and Ms. Moles, and quoted above, the Good Design Guide represents a balance of advantages and detriments.

32. I have considered all the submissions that have been put before me by the parties who appeared, the written objections of Mr. and Mrs. Vale and Ms. Cox and others and I have also carried out an inspection.

33. I have noted that there are several two dwelling developments on lots in the vicinity of the subject land. On the east side of Welwyn Avenue starting from the south-east corner of Welwyn Avenue and South Road, there is a dwelling, 2A Welwyn Avenue, at the rear of the dwelling fronting South Road. At 2 Welwyn Avenue there is a double storey dwelling at the front and a single storey dwelling at the rear. At 4 Welwyn Avenue, the development that was referred to by the Applicant for Review/Permit Applicant on Day 2, I observed a double storey dwelling at the front and a single storey dwelling at the rear, which were almost completed. On the west side of Welwyn Avenue, starting at the south-west corner of South Road and Welwyn Avenue, there is a dwelling, 309A South Road, at the rear of the dwelling at 309 South Road. There are two single storey dwellings, one behind the other, at 7 Welwyn Avenue, and two single storey dwellings, side by side, at 9 Welwyn Avenue, being 9 Welwyn Avenue and 9b Welwyn Avenue. I note that occupants of 9 and 9a Welwyn Avenue are signatories to the letter which was forwarded to the Tribunal by Ms. Cox. There are also two single storey dwellings, one behind the other, at 31 Welwyn Avenue.

34. Mr. Nugent, on Day 3, said that his wife had checked the Title for 4 Welwyn Avenue and it did not appear to be the subject of the restrictive covenant.

35. I do not know whether any of the two dwelling developments in Welwyn Avenue that I have referred to above are in breach of a restrictive covenant, but it seems to me that any detriment that might result from a second dwelling on the subject land has already been suffered. I consider it unlikely that there will be any further detriment suffered as a result of a second dwelling on 6 Welwyn Avenue.

36. Judge Wood, Mr. Macnamara, Mr. Byard and Ms. Moles, in T. Scuderi v Hume City Council, as quoted above, said:

"57. From the above the following propositions may be distilled :

(a) It is for the Responsible Authority or the Tribunal to determine whether any covenant beneficiary "will be unlikely to suffer any detriment of any kind".

(b) This determination must be made on the evidence in the instant case including the appeal site and its environs.

58. The issue for the Tribunal to determine is whether it is satisfied to the requisite standard that the variation of the restrictive covenant would not, as a likelihood, cause any detriment."

37. I am satisfied that my decision in this matter is consistent with these propositions that were set out in T. Scuderi v Hume City Council.

38. For the above reasons this application is allowed. It is appropriate for a permit not to be granted, and I will so order.