1. The Covenant was created on 22 November 1935 and the wording of the Covenant is noted in Transfer of Land 1596691 and includes the following:

(c) No shops laundries factories or works shall be erected on the said Lot hereby transferred and not more than one dwelling house shall be erected on the said Lot hereby transferred and the cost of constructing such dwelling house shall not be less than Four hundred pounds (inclusive of all architects fees and the cost of erecting any outbuildings and fences.

1. The effect of this wording is to prohibit more than one dwelling on the subject land and the permit applicant now seeks a variation of this covenant to allow more than one dwelling on the site.
2. Section 60(5) of the Planning and Environment Act 1987 states:

(5) The responsible authority must not grant a permit which allows the removal or variation of a restriction referred to in subsection (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.

Will the beneficiaries of the covenant suffer any detriment?

1. The covenant was created before 25 June 1991. Section 60(5)(a) of the Planning and Environment Act 1987 provides that Council, and the Tribunal on review, must be satisfied that the beneficiaries of the covenant will be unlikely to suffer detriment of any kind (including any perceived detriment) as a consequence of the removal or variation of the covenant in order for a permit to be issued. On the balance of the probabilities the Applicant must satisfy the Tribunal that there will be no detriment to the beneficiaries of the covenant[2].
2. Mr Dato from 42 Hobbs Crescent, Reservoir, submits that he will suffer detriment, should the covenant be varied. He submits that he purchased his property fully aware that he was a beneficiary of the covenant because he wanted to reside in a low density neighbourhood with its current character and any change to this, which may be the effect from a variation in the covenant, will detract from the character of the neighbourhood. He further submits that there is already sufficient development in the area and any variation to the covenant will further increase traffic congestion and this will further affect his amenity.
3. Council submits that there were 3 other written objections from beneficiaries to the covenant[3] which also state detriment perceived by these land owners, should the covenant be varied.
4. From the submissions and evidence put to the Tribunal, I find that the permit applicant has not demonstrated that the beneficiaries of the covenant will be unlikely to suffer any detriment of any kind. As no development plans have been proposed, it is difficult to know what is proposed for the subject site. This is not to dissimilar from the facts in Giosis v Darebin CC[4] where at Paragraph17, Senior Member Wright QC said:

Unlike many applications for a variation of a restrictive covenant the present applicant has not concurrently sought approval for any particular form of development. This makes it difficult for the responsible authority to be satisfied as required by paragraph (a) because it must consider all possible forms of three unit multi-dwelling development and conclude that it is unlikely that any of them would cause detriment to a benefitting owner.

Have the beneficiaries of the covenant objected vexatiously or not in good faith?

1. Attorney-General for Victoria v Kay[5] notes that:

Proceedings are vexatious if they are instigated with the intention of annoying or embarrassing the person against whom they are brought.

They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicated on the issues to which they give rise.

They are also properly to be regarded as vexatious irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

1. No evidence was put to the Tribunal that the beneficiaries to the covenant objected vexatiously or not in good faith.

1. I find that even though the permit applicant has not lodged development plans to show what is being proposed for the subject site, I am satisfied, on balance, that the objections from the beneficiaries to the covenant are not vexatious and do show a genuine perception of how they will suffer detriment to their amenity should the covenant be varied.
2. Council's decision will be affirmed. No permit is granted.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] McFarlane v Greater Dandenong CC & Ors [2002] VCAT 696.

[3] Mr E & Mrs M Torrelli, 20 Chauvel Street, Reservoir; L. Torrelli, 22 Chauvel Street, Reservoir, Mr Vicitorio, 16 Elliott Street, Reservoir. There were also 4 objections from non beneficiaries to the covenant.

[4] (includes Summary) (Red Dot) [2013] VCAT 825.

[5] [1999] VSC 30.