A. This application for review is not granted, the decision of the Responsible Authority to grant a permit for the variation of the restrictive covenant encumbering the land in Certificate of Title Volume 08185 Folio 739 by the deletion of the words "and not more than one dwelling house shall be erected on the said land" is affirmed subject to the single condition set out in the notice of decision to grant a permit issued by the Responsible Authority on 6 January 2004.

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

Mr. Mark Lovell, Subdivisions Officer of the City of Darebin, appeared for the Responsible Authority. He presented written and oral submissions.

Ms. Nina Ventura, Applicant, appeared in person, assisted by her son, and made oral submissions.

Mr. William Chow, Town Planner, appeared for the Respondent/Permit Applicant, Mr. Giovanni Li Rossi.

Photographs and a plan were tendered. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.82 of the Planning and Environment Act 1987 (PE Act) for review of a decision of the Responsible Authority to grant a permit.

Variation of a restrictive covenant imposing several restrictions including one limiting the allotment to one dwelling where the modification sought was to remove that single dwelling restriction.

Residential 1 Zone under the Darebin Planning Scheme

"COVENANT SHOULD BE RETAINED. NEIGHBOURS PURCHASED IN AREA BECAUSE OF SINGLE DWELLING COVENANT. INCREASE IN TRAFFIC, ITINERENT RESIDENTS. LOSS OF FAMILY USAGE OVERDEVELOPMENT IN AREA. LOSS OF PROPERTY VALUE."

1 There is a single detached house on the review site. It is known as 18 Helsey Street, Reservoir. The Applicant for review/objector, Ms. Nina Ventura, lives next door, on the eastern side of the review site, at 16 Helsey Street. There is a single detached house on that property also. The adjoining property to the west, namely No. 20 Helsey Street, originally had a single detached house. There is now a second house on that land.

2 It appears that the permit applicant, Mr. Giovanni Li Rossi, ultimately hopes to construct a second house on the review site. However, no application for planning permission for the construction of such a house has been made at this stage. There are no plans in relation to such possible house and there is no notion, at this stage, as to whether such a house (if it eventuates) would be of one or two storeys or as to how large or in what configuration and according to what design the house might be constructed.

3 The current proceeding is not in relation to planning permission for a second dwelling. It is in relation to a prior matter which, unless resolved satisfactorily to Mr. Li Rossi, would prevent the construction of a second dwelling. The review site is Lot 2403 on Plan of Subdivision No. 008539 being the land in Certificate of Title Volume 08185 Folio 723. That land is encumbered with the restrictive covenant in Transfer of Land A506803. This restrictive covenant is in the following terms:

(a) No hoarding for advertisement purposes shall be erected on the said Lot hereby transferred.

(b) No quarrying operations shall at any time hereafter be carried out, on, in or upon the said Lot and no stone, earth, clay, gravel or sand shall at any time hereafter be carried away or removed from the said Lot except for the purpose of excavating for the foundation of any building to be erected thereon.

(c) No shops, laundries, factories or works shall be erected on the said Lot and not more than one dwelling house shall be erected on the said Lot and the cost of constructing each house shall not be less than Four Hundred Pounds (inclusive of all architect's fees and the cost of erecting any outbuildings and fences).

4 The relevant part of the covenant, for present purposes, is the following:

"not more than one dwelling house shall be erected on the said Lot."

5 Section 61(4) of the Planning and Environment Act 1987 (PE Act) provides:

(4) If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the restrictive covenant.

6 As things stand at present there are two things preventing Mr. Li Rossi from proceeding to construct a second dwelling on his land. The first is the restrictive covenant preventing more than one dwelling house which, taken together with s.61(4), prohibits a second house. The second is that, in accordance with the planning scheme, a second house can only be constructed if a planning permit allowing such construction is obtained.

7 Mr. Li Rossi must obtain the removal or suitable modification to the restrictive covenant to overcome the first obstacle. He must then obtain a planning permit for a second dwelling to overcome the second obstacle. Of course, he may not be able to obtain one or other of these things, in which case the proposed construction of a second dwelling will remain illegal.

8 There are several possible ways of removing or modifying a restrictive covenant such as this one. One method, and the one adopted by Mr. Li Rossi, is to apply to the Responsible Authority for a planning permit allowing such removal or modification.

9 By proceeding in the way he has, Mr. Li Rossi must apply for an obtain two planning permits, one for modification of the restrictive covenant, and the second granting planning permission for the construction of a second dwelling.

10 Sometimes an applicant in this position will make a single application for those two permissions, or will make two applications simultaneously. Mr. Li Rossi has not proceeded in that way. He has made an application to the Responsible Authority for a permit to modify the restrictive covenant, but he has not (at this stage) applied for the second permission needed, that is, planning permission for the second dwelling. Presumably, he will proceed with a second application for that permission, if and when he obtains a modification of the restrictive covenant.

11 The procedure adopted by Mr. Li Rossi, in seeking a planning permit to modify the covenant, is no doubt a convenient one from some points of view. It has been observed that it is somewhat anomalous that the planning permit procedure, in relation to public town planning, should also be adopted and made available as a means of modifying or removing a restrictive covenant. A restrictive covenant, after all, has its origin in a private contract for the sale of land. The benefit of such a restrictive covenant is not available to the public as a whole, simply on the basis of being part of the public. On the contrary, the benefit of a restrictive covenant attaches only to some particular pieces of land, and the owners of such benefiting land. Whether anomalous or not, the law as it now stands, allows this procedure, as followed by Mr. Li Rossi.

12 He applied to the Responsible Authority on 9 April 2002 for a planning permit for a proposal which he expressed in the following terms:

VARIATION OF COVENANT TO ALLOW THE CONSTRUCTION OF SECOND DWELLING.

13 The Responsible Authority gave or required the giving of notice of this application. It is required to give or require the giving of such notice by s.52 PE Act. Section 52(1)(cb) specifically requires that such notice be given:

(cb) to the owners (except persons entitled to be registered under the Transfer of Land Act 1958 as a proprietor of an state in fee simple) and occupiers of land benefited by a restrictive covenant, if the application is to remove or vary the covenant.

14 This application was to vary such a covenant, and notice was required to be given to the owners and occupiers of land benefited by the restrictive covenant in accordance with that provision.

15 Section 52 PE Act provides other powers and discretions in relation to the giving of notice to various people in various ways in accordance with the circumstances of the case. If Mr. Li Rossi had, in the same application, sought permission for the construction of a second dwelling, I have little doubt that he would have been required to give notice to the owners and occupiers of adjoining land, whether or not such adjoining land had the benefit of the covenant and to other persons that the responsible authority considered might suffer material detriment by the grant of a permit for the second dwelling. Apart from serving individual written notices, s.52 provides for the giving of notice by means of a sign on the land or an advertisement in a newspaper. Both those modes of giving notice would be likely and appropriate if the second permission, namely permission for the construction of the house, had been sought at the same time.

16 However, in this instance the second permission is not being sought. The application was limited to the question of the modification of the covenant. In these circumstances it appears to me that it would be appropriate to give notice to the owners and occupiers of land having the benefit of the covenant pursuant to s.52(1)(cb). That was done. However, that is not all that was done. Further notice was given to others who did not own or occupy land with the benefit of the covenant, at least by the mode of the display of a sign on the land and an advertisement in the press. That gave rise to a number of objections being lodged with the responsible authority from people who are not the owners or occupiers of land having the benefit of the covenant. They include Ms. Ventura. It also led to these people who are not the owners or occupiers of benefiting land raising various objections on the planning merits to the construction of a second dwelling on the land even though the application for such dwelling has not yet been made, and no plans for such construction are in existence. It seems to me that these grounds of objection really relate to the second application that has yet to be made, and not to this first one currently under consideration. It further seem to me that it has caused confusion and trouble for those who have objected and to the responsible authority and the permit applicant by attracting objectors who do not own land with the benefit of the covenant in relation to the consideration of whether the covenant should be varied, and giving the objectors the impression that this is their occasion for objection, rather than when the subsequent application for planning permission is made.

17 As I have said, apart from that more general notice, specific notice was given to the owners and occupiers of land with the benefit of the covenant. In the event, no objections were received from the owners and occupiers of land with that benefit. The only objections were from owners and occupiers of land, mainly in or near Helsey Street, which do not have the benefit of the covenant. When the Responsible Authority came to consider the application it noted this distinction. It also considered, as it was obliged to do, the provisions of s.60(5) PE Act. That provision is applicable because the restrictive covenant concerned was created before 25 June 1991. That sub-section creates what is usually a very significant obstacle to the granting of permission for the removal or variation of a restrictive covenant. It provides that the responsible authority (and this Tribunal on review) cannot grant a permit for such removal or variation unless it is satisfied as to paragraphs (a) and (b) of subs. 5 of s.60.

18 Section 60(5)(a) is a complicated provision. It bars the granting of a permit unless the responsible authority (or Tribunal) is satisfied that the owner of any land benefited by the restrictive covenant will be unlikely to suffer any detriment of any kind (including any perceived detriment) as a consequence of such removal or variation. In this connection it is not any detriment of any kind to anybody that has to be considered, but rather whether it is unlikely that the owner of land benefiting will suffer any detriment of any kind. In fact, the plan depicting the lands benefiting tendered at the hearing indicates that only one property in Helsey Street has the benefit of the covenant, and that property is some distance away to the west, and on the other side of the street. The other land with the benefit are spread over a wide area with some of them fairly remote from the review site, and none of them in the street. With the owners and occupiers of land benefiting being so situated, and having specific written notice of the application, and with none of them having objected, the Responsible Authority had little difficulty in being satisfied that it was unlikely that such owners would suffer any detriment by the proposed variation. This might be due, not only to the location of their land, but to the fact that they did not object when they had the opportunity. I think this is reasonable and I come to the same conclusion for the same reason.

19 As it happens, s.60(5)(b) does not apply in this particular case. It only applies when the owner of land benefiting has objected. No such owner objected in this case.

20 At the hearing, Ms. Ventura and her son made oral submissions to me in relation to their concerns about the possibility of a second dwelling being erected on the land. Some of these concerns, in relation to shading for example, would be relevant if permission was being sought for the construction of a second dwelling, and will be relevant if and when such an application is made. They are not put in terms of being relevant to the question of whether any detriment of any kind will be suffered, not by Ms.Ventura, but by the owners of benefiting land. Some of the submissions made would not be relevant either to a subsequent application for permission for a second dwelling, or to the variation of the covenant. For example, submissions were made in relation to the past ill health of Ms. Ventura's late husband and, as I understood it, his father. They were also made in relation to resentment felt by Ms. Ventura, and apparently other neighbours, in relation to practices followed by the owner of No. 20 Helsey Street when permission was sought for a second dwelling on that land. It was put that the owner persuaded neighbours not to object because the proposal was to allow accommodation for an elderly relative in poor health. When the permission was obtained, and the house built, I am told that it was then said that the relative did not need the accommodation and an attempt was made to sell the second dwelling. These matters were not really relevant to the planning merits of whether the second dwelling should obtain a planning permit, or as to whether a permit should have been granted to remove or modify a restrictive covenant, if one applied to that land. Perhaps it did serve as a warning to neighbours not to allow themselves to be too readily persuaded to refrain from objecting or to withdraw objections that have been made. Apart from that, such considerations are not relevant to the current proceedings, or to the possible future proceedings if a further permit for construction of a second house is sought.

21 On the case before me, I am satisfied that the decision of the Responsible Authority to modify the covenant was appropriate, in the circumstances, and I propose to affirm that decision. The notice of decision contained a single condition, which will also be allowed to stand.

22 I think it is important for Ms. Ventura, and other neighbours, to understand that this does not, of itself, allow Mr. Li Rossi to proceed with the construction of a second dwelling. It merely removes the first constraint which was a constraint in relation to which only the owners of land benefiting from the covenant had legal rights. Ms. Ventura, and her neighbours, will presumably be on the look out for notice of any further application that might be made for permission to in fact construct a second dwelling. Such an application will need to be accompanied by plans of the proposed second dwelling. They will then have an opportunity, if they think fit, to object to the responsible authority against the grant of such a permit. If dissatisfied with the decision of the responsible authority in that regard, she or they can then apply to this Tribunal for a review of the decision of the responsible authority. On the other hand, it may be that the permit applicant will be dissatisfied with the decision of the responsible authority, and he may apply to this Tribunal for a review. In that case the objectors to such new application will receive notice of the hearing at the Tribunal, and have an opportunity to put their case.

23 If the matter comes to this Tribunal, whether as an objector's review of a decision to grant, or as a permit applicant's application to review a refusal or failure of the responsible authority to grant a permit, or as a review of conditions imposed by a responsible authority, then that will be the time for the objectors to advance their arguments in relation to the planning merits as to why such a second dwelling should not be permitted. They will then be in a position to do so on the basis of an actual proposed development. They will be able to see how large it is and whether it is of one or two storeys and what provision is proposed in relation to planning. They will be able to consider and advance arguments in relation to overlooking or overshadowing or overdevelopment or any other planning considerations that they might consider to be relevant.

24 It is perhaps unfortunate that Ms. Ventura has been drawn into the conflict as this initial stage, rather than subsequently when such a further permit application is made. No doubt she will be ready when the time comes.

25 I have mentioned that the decision of the Responsible Authority, and its notice of decision, set out a single condition which I will include. The notice of decision to grant a permit dated 6 January 2004 also contained two notes at the foot of the conditions. These notes are no doubt seen as a convenient means of conveying some information. However, they are not really part of the permit and will not be included as part of my order.