not erect or cause to be erected on the said land hereby transferred any building or erection other than a single dwelling house with the usual outbuildings the front building line of such dwelling and outbuildings being not closer than 7.6 metres from the street frontage .......

5 Three objections were received from outside Simpson Street, but within part of the Ellerslie Estate.

6 The subject lot 3 sits at the head of a court bowl, and abuts the continuation of Simpson Street through a series of easements of carriageway and drainage.

7 Lot 3 is 1865m² in area and is zoned Residential 1 with a Vegetation Protection Overlay.

8 There are 2 lots in Simpson Street that contain units (3 units on No. 7 and 8 units on No. 8 respectively) but these two lots were never a part of the Nickson Homes Pty Ltd subdivision, and thus not a part of its restrictive covenant system, nor of any other restrictive covenant control. I will refer later to the Nickson subdivision.

9 The two tests posed by the Planning and Environment Act 1987, s. 60(5) are extremely stringent to say the least. They are that a permit must not be granted unless the Responsible Authority or VCAT is satisfied that:

•

Owners of land benefiting will be unlikely to suffer detriment of any kind (including perceived detriment); and

•

If a benefiting owner objects to the permit, the objection is vexatious or not made in good faith.

10 I agree with much of what Mr Viney argues on his clients' behalf, on pure planning grounds.

11 There are two contrasting components to the Ellerslie Estate: the low density, sparsely developed Lord Street, Ellerslie Court and McGrath Streets on the one hand, and Simpson Street on the other hand, which is already heavily developed with units and which continues to enjoy new planning permits for units (eg. 11 units on Lot 2 PS510 270 diagonally opposite).

12 Applying under pure planning principles, divorced from restrictive covenant issues, this is a good site for unit development. If the front house remains as proposed, it will screen new unit development and retain existing streetscape character.

13 The 1.6km proximity to the town centre, the large size of the land parcel for only two units, the site's location in Simpson Street heavily populated by units, its two street abuttal and its abuttal to a reserve, all lend to its suitability for units. It is an excellent unit site. No abutting or Simpson Street landowners have objected.

14 I also agree that the Simpson Street entry into the Ellerslie Estate is of a completely different, more built up appearance than the southern portion of the Estate; and that the site is distant from the objector's dwelling. The completely different character in Simpson Street is the result of not being burdened by this subject (or similar) restrictive covenant. The only reason the subject block is burdened, albeit its location in Simpson Street, is its inclusion in the Nickson Homes Pty Ltd subdivision of the Ellerslie Estate back in 1983.

Decisions favouring covenant variation or removal

15 Mr Viney has referred me to three cases where covenant removal applications have been successful, namely Northern Exposure v Darebin CC[1], Ingberg v Bayside CC[2] and Meates v Maroondah CC[3].

16 There is also my decision in Schock v Yarra Ranges Shire Council [2003] VCAT 1733 ('Schock').

17 But I do not find these cases on all fours with this case for the following reasons.

18 Firstly, in Schock, I found an inconsistency and exercise of double standards in the attitude of the objector, who had not lodged notice that he wished to be a party to the review to other covenant removals in the same neighbourhood.

19 Secondly, there is no lot within this Ellerslie Estate which has had this covenant as much as even varied.

20 Thirdly, this covenant appears to me to be a building scheme, as illustrated by the following preamble thereto:

and the said ALEX PAPADOPOULOS and KIRIAKI PAPADOPOULOS for themselves their heirs, executors, administrators, transferees and the registered proprietor or proprietors for the time being of the land hereby transferred COVENANTS with the said NICKSON HOMES PTY LTD its successors assigns and transferees and as separate covenants with other the registered proprietor or proprietors for the time being of the land comprised in the said Plan of Subdivision and every part of parts thereof (other than the land hereby transferred).

21 This already distinguishes this case from Ingberg v Bayside CC where Bruce, DP wished to make it clear that:

There has been no argument placed before me that the covenant in question is part of a building scheme under which the covenant is enforceable both by and against every owner on the subdivision. Such a scheme may be created where the original subdividers intended to ensure that only one detached house was built on each lot throughout the subdivision, and those purchasing the lots did so in the knowledge and on condition that they would enjoy the benefit of this limitation and in return, would be subject to the same restriction as everyone else who purchased a lot. All parties have treated this as a case of covenant enforceable only by the successors in title of those persons who are shown as entitled to the benefit of the covenant in the transfer that created it.

22 Fourthly, Northern Exposure v Darebin CC can be distinguished because:

i

It was not a building covenant;

ii

Only five lots remained which obtained the benefit of the covenant;

iii

None of the benefiting owners objected to its removal in the first place;

iv

One person joined later to the review allowed a covenant immediately next door to him removed with three dwellings built thereon.

23 Finally, Rickards M in Meates v Maroondah CC found the objection vexatious, which can simply not be said at all for the Clarks.

24 Mr Clark is the 'Defender' of restrictive covenants benefiting the Ellerslie Estate. He explained how the residents enjoy the benefit of the covenant strictly applied through the Ellerslie Estate. They enjoy a high standard of low density, treed, green, well landscaped, non-hard surfaced, residential neighbourhood. They are also concerned that this first covenant removal (or variation) will create an adverse precedent.

25 Restrictive covenants do have a value to Mr Clark, who purchased in 1985 on the strength of this low density covenant protecting him into the future, with its single dwelling 7.6m front setback/no fencing, covenant which ensures a park like atmosphere throughout the whole estate.

26 Because of this covenant, Mr Clark explained that owners have the confidence to spend money improving their property within this estate.

27 Mr Clark also pointed out the interesting fact that council, by its original planning permit No. 69/77 issued 12/10/1977, required the then developer (Nickson Homes Pty Ltd) to impose the subject restrictive covenant on the subdivision, retaining the present density of the estate on each allotment in the subdivision.

28 In the final analysis, Mr Clark has persuaded me of his bona fides and the Burns' inability to overcome the hurdles set by Parliament and s.60(5) of the Planning and Environment Act 1987.

29 In the final analysis I find the comments by Strong, J and Cimino M in McFarlane v Dandenong CC & Ors ("McFarlane") [2002] VCAT 469 apposite:

"... the mere presence of an objection by a relevantly interested person is fatal unless the Tribunal is satisfied that the objection is vexatious and not made in good faith.

.... it underscores the near impossible task faced by an applicant for variation or removal of a covenant who has not procured the consent of those entitled to its benefit".

"This is not a dead wood covenant. It is likely that every block on this subdivision is burdened by a similar covenant. It is likely that these blocks were marketed and acquired as prime home sites - as indeed they are. It is likely that the belief and intention of those who acquired them was that the estate would be developed in precisely the way it has been: substantial brick or brick veneer houses, separation between buildings, abundant trees and attractive gardens. The introduction of three dwellings on a block intended for one is likely to increase vehicular traffic in the street and across the footpath, increase noise audible to those in adjacent houses, decrease the ratio between built form on the one hand and trees and gardens on the other and decrease the aesthetic quality of the rear gardens of adjoining properties".

30 Even though Mr Viney is prepared to accept a covenant variation for only a second dwelling at the rear, retaining the present 7.6m setback from street frontage, he has been unable to convince me that this is a "dead wood" covenant as expressed by the Minister in his second reading speech, and as reiterated by McFarlane.

31 Again I say this notwithstanding that no traffic resulting from this proposed removal or variation will filter through to the objectors. As McFarlane held, "compliance with planning controls does not, without more, establish that a beneficiary will be unlikely to suffer any detriment of any kind".

32 I am unable to say there will be no detriment or perceived detriment of any kind. Accordingly I have no choice but to disallow the application for review and direct that no permit issue.

[1] [2003] VCAT 1839

[2] [2000] VCAT 2407

[3] [2004] VCAT 47