Interpretation of legislation which expropriates an interest in land without compensation.

LEGISLATION - interpretation or application of statutory provision

Section 60(2) Planning and Environment Act and cl.52.02 Port Phillip Planning Scheme

PLANNING SCHEME - interpretation or consideration of VPP provision

ANALYSIS - exposition of how to asses an issue or matters to consider

APPLICATION - significant, interesting or unusual use or development; application of policy, provision or principle; or circumstances

1. A permit to remove a restrictive covenant constitutes the expropriation of an interest in land without payment of compensation. Section 60(2) Planning and Environment Act 1987, which lays down threshold tests that give some protection to benefitting owners, must be considered as beneficial legislation and given as wide a meaning as the words reasonably allow.

1. Moreover, the standard of proof required to satisfy the threshold tests must be informed by the severity of the consequences for the dispossessed owner (Briginshaw v Bringinshaw applied). The Tribunal must be persuaded not simply on the balance of probabilities but to a "comfortable level of satisfaction" that the threshold requirements are met.

1. If there is no specific development proposal before the Tribunal, the wide range of development options for the burdened land if the restriction is removed makes it almost impossible for the Tribunal to conclude that the threshold tests are satisfied.

1. To assess the loss or detriment referred to in s.60(2) it is first necessary to determine what is capable of being lost. Where the restriction can be a unilaterally waived by a third party the benefit of the covenant may be illusory.

1. On an application to remove or vary a restriction the power of a third party to waive the restriction can be removed. The third party's loss of the power to waive the restriction is not an economic loss of the type recognised as a planning consideration and therefore cannot be taken into account under cl.52.02.

1. The reference in clause 52.02 of the Planning Scheme to a use or development that complies with the planning scheme includes compliance with a seriously entertained amendment of the planning scheme. Section 84(B)(2)(g) of the Act requires this to be taken into consideration.

Section 79 Planning and Environment Act 1987; complex case; application to remove or vary restrictive covenants; tests under clause 60 (2) and clause 52.02, impact to beneficiaries of removal of covenant; planning history; status of amendment C104.

Patricia Goldie, William DeBruyn, David Viney, Jillian Maddox, Roger Joyce, Ian and Sue Whiting, Trevor Nink, Lloyd Bunting, Kevin and Stephanie Armstrong, Sally Cessford, William Warren Fisher, Eddie Micallef, Gerhard Correa, Ian Close, The T Group Pty Ltd, Elizabeth and Glen Morrison Mirvac Victoria Pty Ltd, Mirvac (Beacon Cove) Pty Ltd and others

Waterfront Place Pty Ltd v Port Phillip CC (Includes Summary) (Red Dot) [2014] VCAT 1558

1. Pursuant to section 127 and clause 64 Schedule 1 Victorian Civil and Administrative Tribunal Act 1998 the application for permit is further amended by deleting the reference to the Panel Alternative Plans referred to in Order 3 of the orders made by the Tribunal on 13 October 2013.
2. The hearing will be reconvened on 21 January 2015 at 10.00am to hear any submissions any party may wish to make in relation to the proposed orders referred to in paragraph 125 of the Tribunal's reasons. Submissions are to be confined as directed in paragraph 126.

Mr Adrian Finanzio, SC with Ms Maria Foley instructed by Rigby Cooke Lawyers. They called;

Mr Ian Pitt SC of Best Hooper, solicitors. He called :

For Mirvac Victoria Pty Ltd and Mirvac (Beacon Cove) Pty Ltd:

Ms Susan Brennan SC and Ms Jennifer Trewhella instructed by Norton Rose Fulbright.

The other respondents appeared in person with Mr Gerhard Correa representing himself, Mr William DeBruyn, Mr David Viney, and Ian and Sue Whiting.

To vary or remove restrictive covenants that apply to 1-5 Waterfront Place (Lot 3) and 7-9 Waterfront Place (Lot 2).

Application under section 79 Planning and Environment Act 1987 to review the failure of the responsible authority to grant a permit within the prescribed time.

Clause 37.02 Comprehensive Development Zone Schedule 1

Clause 42.01 Environmental Significance Overlay Schedule 4

Nos. 1-9 Waterfront Place are located near the entrance to the Beacon Cove Estate from Beach Street and comprise two lots (Lot 2 and Lot 3) on Plan of Subdivision No. 344 341D with a total area of 5,487 square metres.

The site is currently occupied by a single storey brick building with terracotta tiled roofing, two outdoor tennis courts and some car parking. The buildings that are currently vacant were previously used a child care centre and gymnasium including an indoor pool. However having been damaged by fire this part of the building has been removed.

To the west the site is adjacent to the historic Port Melbourne Railway Station building that is used as a medical centre, the light rail tram terminus at Station Pier, local shops and restaurants the Bay Trail and Port Melbourne Beach.

Further to the west on the waterfront there are five apartment buildings ranging in height between 10 and 14 stories.

North of the site on the opposite side of Beach Street are a row of dwellings ranging from one to three storeys in height which form part of the Beacon Cove Estate.

To the east along Beach Street are a number of high rise apartment buildings up to ten storeys which comprise mixed use developments within the Port Melbourne mixed use area.

To the south on the foreshore is Station Pier, the berthing point of the Spirit of Tasmania and cruise ships from overseas.

An independent Tribunal inspection was undertaken by the members on 16 November and 6 December 2014.

Tulk v Moxhay (1948) 41 ER 1143

Hill v Campaspe Shire Council [2011] VCAT 949

271 William Street Pty Ltd v City of Melbourne [1975] VicRp 15; 1975 VR 156

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Pletes v City of Knox and Minister for Planning (1993) 10 AATR 155

McFarlane v City of Greater Dandenong [2002] VCAT 696

Carabott v Hume City Council (1992) 22 AATR 261

Giosis v Darebin City Council [2013] VCAT 825

Charan v Wyndham City Council [2014] VCAT 219

A & K Corporation Pty Ltd v Darebin City Council [2014] VCAT 178

Tsourounak Ice v Darebin City Council [2014] VCAT 224

Singh v Darebin City Council [2014] VCAT 1169

Imbrogno v Boroondara City Council [2014] VCAT 163

Vrakas and Mills (2006) VSC 463

Lento v Whittlesea City Council [2004] VCAT 2101

Kyriacko v Law Institute of Victoria Limited (2014) VSCA 322

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

1. Beacon Cove is an excellent example of what can be achieved by a well planned urban renewal project. Established in the 1990's as a joint venture between the Mirvac Group and the State government it transformed outdated and underutilised port facilities and heavy industry uses into an urban residential area able to enjoy the ambience of beach and bay combined with ready access to the recreational and cultural offerings of central Melbourne.
2. The built form of the project combined high rise elements (up to 14 storeys) along the waterfront with low rise conventional housing behind. It included a third element akin to a community hub on an island site, roughly triangular in form, to the east of the high rise buildings between Beach Street and the foreshore. This hub occupied an area of 5,487m2. It comprised low rise buildings which contained a gymnasium, child minding centre, swimming pool and tennis courts. It was next door to the supermarket which services the estate and the light rail terminal which provides access to the city. The terminal itself is a building of heritage value both historically and architecturally.
3. This hub is central to the case.
4. The passage of time together with a combination of neglect, bureaucratic obfuscation, polarised planning attitudes, economic factors and physical depredation has seen this element deteriorate to a point where it presents as a malignant growth on an otherwise vibrant urban estate. Those buildings which have not been destroyed by fire are vacant and have not been used for some years, and the site is overgrown. Surgery is required before the situation becomes cancerous.
5. The present owner of the site and the applicant in this proceeding, Waterfront Place Pty Ltd, has put forward a number of proposals for more intensive residential development of the site ranging up to 19 storeys facing the bay. The responsible authority has by its adoption of Amendment C104 to the Port Phillip Planning Scheme stated a preference for an envelope that could contain a building or buildings up to 10 storeys. The applicant is prepared to accept this position.
6. On the other hand there is a significant body of opinion among existing residents in the low rise part of the estate that the area should remain low rise as originally planned, and indeed built, and that it should continue to provide community facilities. This opinion draws succour from what are said to have been representations made by Mirvac when marketing the estate that the hub would retain this form and function. Quite apart from any legal ramifications of these representations it is claimed that they have given rise to certain expectations as to how the hub might be redeveloped.
7. Into this planning morass the Tribunal has been drawn by the somewhat oblique vehicle of an application to remove or vary restrictive covenants rather than a proceeding seeking direct approval of a particular form of use and development. It is now appropriate to look more closely at this oblique vehicle.

1. The area now known as Port Melbourne was first developed in the 1850s when a railway line was constructed between Melbourne and Sandridge, the first rail line in Australia, to service the larger ships that were arriving in Melbourne but were unable to navigate the Yarra River. This led to the development of Station and Princes Piers, major landfall places for a large number of migrants to Australia. The area continued to be used as a shipping terminal up until the 1930s and following the decline in the number of ships using the area the onshore facilities continued to be used for industrial purposes through until the early 1990s.
2. In the mid 1990s a joint venture between the State government and the Mirvac Group commenced cleaning up the area and redeveloping the site for residential purposes. The area was named Beacon Cove. The existing road network was modified, with a roundabout constructed at the intersection of Beach Street and Waterfront Place. Large numbers of single two and three storey attached and detached houses were constructed together with a number of residential towers to the west of the pier. Substantial landscaping was provided and pocket parks were created.
3. Construction of the residential areas commenced in 1996 and is now complete with the construction of the final tower on the foreshore. The total development comprises 840 dwellings which include low rise apartments, 10-14 storey apartment buildings and detached and attached housing.
4. The two lots the subject of this application were developed with a gymnasium including an in-ground swimming pool, child care centre and two outdoor tennis courts. The buildings were low scale and constructed of design featured brick with terracotta tile roofs. Some elements such as window details picked up design features of the residential areas nearby. The railway station was also refurbished and used for commercial purposes. Planning controls were put in place at that time to facilitate the development as set out in the master plans for the area.
5. When the final stages of the development of the residential areas were being undertaken a number of lots were given the benefit of restrictive covenants that were placed over Lots 2 and 3. The object was to protect the form of the buildings on these lots and restrict design and built form changes to those approved by Mirvac.
6. In 1994 Amendment L16 to the Port Melbourne Planning Scheme created the Bayside Concept Plan No.1 and the Bayside Precinct Plan No.1. The site subject to this proceeding was part of the commercial and leisure precinct under the Precinct Plan with a designated height limit of three storeys identified for predominantly commercial and leisure uses. This amendment was approved on the 22nd of March 1995.
7. The uses on the site were established in accordance with the Precinct Plan. With the introductions of the Victorian Planning Provisions (VPPs) the Bayside Development Zone was converted to the Comprehensive Development Zone Schedule 1 [CDZ1] and the controls outlined in the Precinct Plans were incorporated into the new format scheme.
8. Amendment C44 to the scheme amended the CDZ1 by updating the Table of Uses and incorporating the Concept Plan and Precinct Plans into the scheme.
9. The applicant in these proceedings became the registered proprietor of the subject land in April 2007 at which time the child care centre was no longer operating. The gymnasium, pool and tennis courts were still in operation.
10. Amendment C73 was prepared by Council in 2011. This amendment rezoned the residential precincts predominantly to a Residential 1 zone with other areas being rezoned Public Use Zone - Schedule 4 and Public Park and Recreation Zone. The amendment also transferred the role of responsible authority from the Minister to the Port Phillip City Council. Another consequence of this amendment was to remove the covenant that burdened the low rise residential areas. It was considered that because that the area had now been fully developed further change could be dealt with under normal planning scheme controls.
11. Amendment C105 was prepared by the Minister for Planning and transferred the role of responsible authority for the commercial precinct to the council. Land use floor space limits were deleted from the schedule which allowed commercial development to be dealt with through the planning permit process. Amendment 105 did not seek to vary or remove any of the covenants that apply to the land.
12. To manage future development in the area the council resolved in December 2011 to prepare and place on exhibition Amendment C104. This amendment emerged from the draft Port Melbourne Waterfront Urban Design Framework (UDF) which council prepared in 2010. An extensive consultation process was undertaken with the majority of the submissions relating to the future use of the subject site. Council finally resolved that a separate Urban Design Framework should be applied to both the subject site and the adjacent land at 103 Beach Street which contains the supermarket and cafes.
13. However, it was not until July 2013 that council exhibited Amendment C104. The amendment proposed rezoning the area from the Comprehensive Development Zone 1 to a Mixed Use Zone and introduced a Design and Development Overlay (DDO) Schedule 23. The Schedule modified the incorporated document Beacon Cove Development Port Melbourne 2004 that contained the Concept Plan and the Precinct Plan. The amendment did not seek to vary or remove the restrictive covenants over the subject land.
14. During the course of exhibition over 1,000 submissions were received with the majority of those opposing the amendments. In September 2013 the planning authority referred the submissions to a panel which conducted hearings between 9 and 16 December 2013. The panel produced a report in February 2014. The panel recommended that the amendment should be adopted but with modifications including removal of a ten storey mandatory height control, the imposition of a mandatory equinox shadowing parameter and a discretion in shadowing criteria at the solstice.
15. However it was not until September 2014 that the council decided to adopt Amendment C104. The adopted form did not accept all the recommendations of the panel. The adopted amendment was submitted to the Minister in September 2014 and at the time of writing this decision with a new government having just taken office the future of the amendment remains uncertain.
16. The permit applicant is concerned at the unsatisfactory timeline that has occurred regarding future development of what is recognised as a significant site. The Tribunal consider that this is a legitimate concern.
17. It is understood that in the early 2000s discussions took place between council and Mirvac regarding handing over planning control for the area. At that time council was not prepared to accept this role. From the successive studies that have been undertaken by council going back to the early 2000s there has been a recognition that a more intensive development should occur on the land. This has in fact been adopted with variations in Amendment C104 which would facilitate more intensive development of the site.
18. A McGauran Soon report in 2009 recommended a two level podium form for the site with five levels terraced back from the frontage which would provide an opportunity to "reinstate and enhance its share of a memorable international gateway status". This would encourage "a significant landmark element at this prominent gateway site".
19. In January 2013 David Locke and Associates completed a Port Melbourne views and vista study which modelled a number of built form scenarios to ascertain the most appropriate form and scale for a building on the site when viewed from public locations such as the beach, the pier and the road network. The study concluded that a medium rise scenario of eight to twelve storeys in the form of two separate towers was the most appropriate.
20. Also in 2013 a Design and Development Study by SJB Planning and Glas Urban developed a series of principles for the site to enhance its gateway status and identify the light rail terminus. The proposal featured a 12 storey built form with a four storey podium at the east end of the site and a building on the western side adjacent to the railway terminus stepping up from three storeys to seven storeys along Waterfront Place. The draft design guidelines for 1-7 Waterfront Place were released by council in March 2013. These guidelines identified the site as a key redevelopment opportunity and concluded that the controls that had been in place since 1990 were not sufficient to guide future redevelopment of the site. The guidelines recommended a maximum height for development on the site of 10 storeys with a three storey podium.
21. A number of these studies were discussed and debated in the Amendment C104 panel hearings. The panel concluded that the site was a strategic development site and that the opportunity for redevelopment of the site should not be wasted by underdevelopment. It noted that the site had varying interfaces including the residential properties to the north of Beach Street, the beach, the foreshore and the railway station. The panel also recommended varying podium heights with a three level podium to street walls and the higher portions including the tower to be guided by performance based overshadowing controls.
22. The council commissioned another report and in August 2014 a report was received entitled 1-7 Waterfront Place Port Melbourne Summary of Post Panel Urban Design Advice. This report recommended variations to the panel recommendations and considered a three storey street wall around the perimeter of the site including the western edge adjacent to the railway station, with varying setbacks and a central tower with a maximum 10 storeys in height.
23. What emerges out of all of these studies over a number of years is that the existing buildings in their dilapidated state are no longer suitable for the site and that redevelopment which includes a wider mix of materials and a higher intensity of activity including residential uses on the site is appropriate.
24. However, until the recent adoption of Amendment C104 the responsible authority has not been prepared to bite the bullet. The vacillation between strategic planning advice and community pressures has resulted in delays that can now be measured in years. The residents of the area, the large number of visitors to the area including many overseas tourists, the land owner and the community generally deserve a better and clearer planning regime.

1. Waterfront Place Pty Ltd has applied to review the failure of the Port Phillip City Council to grant a permit within the prescribed time to remove or vary the restrictive covenants which burden land at 1-9 Waterfront Place, Port Melbourne.
2. The covenants the subject of the application are as follows:

1. This restriction applies to Lot 2 on Plan of Subdivision 344341D, being the land more particularly described in Certificate of Title Volume 10330 Folio 310. The covenant provides that the transferee and its successors and the registered proprietors for the time being of the land transferred:

shall not, except with the written consent of Mirvac (Beacon Cove) Pty Ltd ACN 066 913 497 (Mirvac) or its nominee:

(a) demolish or permit to be demolished any building or part of a building or improvement or part of an improvement on the Burdened Land constructed by or for Mirvac unless the building or part of the building or improvement or part of the improvement is replaced by a building or part of a building or improvement or part of an improvement respectively built in accordance with the plans and specifications prepared by H.P.A. Architects Pty Ltd ("Mirvac's Architects") and lodged with the City of Port Phillip as at the date hereof;

(b) erect or permit to be erected on the Burdened Land any building or improvement where a building or improvement has been erected by or for Mirvac other than in accordance with existing plans and specifications prepared by Mirvac's Architects and lodged with the City of Port Philip as at the date hereof;

(c) add or permit to be added any extension or make or permit to be made any structural alteration to any building or improvement constructed on the Burdened Land by or for Mirvac other than in accordance with existing plans and specifications prepared by Mirvac's Architects lodged with the City of Port Phillip as at the date hereof;

(d) paint, render or otherwise alter or permit to be painted, rendered or otherwise altered the external facade of any building or improvement on the Burdened Land other than in colours the same or similar to those which any such building or improvement on the Burdened Land was painted, rendered or otherwise finished by or for Mirvac;

(e) permit any laundry or other clothing to be dried or aired on the Burdened Land other than within the building constructed on the Burdened Land by or for Mirvac;

(f) except as required by law, place, erect or in any way affix, or permit to be placed, erected or in any way affixed on or to any part of the Burdened Land any advertising, hoarding or other structure which is intended or is suitable for the display of advertisements or notices nor use or permit the Burdened Land to be used for display of advertising or notices unless the advertising, hoarding or other structure:

(i) is no greater than 1300mm in width and 550mm in height; and

(ii) is erected or affixed above the entrance to the building on the Burdened Lot and at a height not exceeding 4000mm above the ground; and

(iii) is to the satisfaction of the authority responsible or (sic)administering the planning scheme applying in relation to the Burdened Land;

(g) subdivide or permit the subdivision of the Burdened Land; and

(h) use or permit the Burdened Land to be used as a dwelling or for the habitation or accommodation of persons otherwise.

PRO VTDED THAT none of the foregoing restrictions are intended nor shall they be construed as preventing any internal modifications to the building referred to therein which do not alter or affect the external appearance of any such building.

1. The covenant is expressed to apply for the benefit of the lands shown coloured green on the plan Exhibit A2. These properties form part of the low rise section of Beacon Cove and are clustered around Beach Street, Little Swallow Street and The Crescent approximately 250 metres west of the subject land. The covenant also benefits part of the foreshore and the approach to Station Pier as shown on the plan.

1. This restriction applies to Lot 3 on Plan of Subdivision 344341D, being the land more particularly described in Certificate of Title Volume 10330 Folio 311. The covenant is in the same terms as W413729L save that it does not include paragraphs (g) and (h) prohibiting the subdivision of the land and its use as a dwelling or for accommodation. It does contain a paragraph regulating the hours of use of the tennis courts. The covenant is expressed to apply for the benefit of the land shown coloured blue on Exhibit A2. This land is located around Australis Court, which also forms part of the low rise section of Beacon Cove. The benefiting properties are approximately 350 - 400 metres north west of the subject land.

1. The Plan of Subdivision was registered on 29 May 1997. It includes a restriction in the same terms as Instrument of Transfer VO74097S. The restriction is expressed to apply for the benefit of Lots 1 and 2 on the plan of subdivision. Lot 2 is, of course, owned by the applicant. Lot 1 is owned by the T Group Pty Ltd which appeared by Senior Counsel at the hearing to produce a letter consenting to the removal or variation of the restriction.
2. The plan of H.P.A. Architects Pty Ltd referred to in the covenants show a low rise development of the subject land essentially as it was built and containing the facilities referred to earlier.
3. The application seeks to have the covenants removed or alternatively varied. The variation sought as amended by the Tribunal on 13 October 2014 and further amended pursuant to leave granted by the Tribunal at the hearing is as follows:

VARIATION OF COVENANT-COUNCIL ADOPTION ALTERNATIVE

That the restriction contained in Plan of Subdivision PS344341D be modified as follows:

1. In paragraph 1(c) delete the words "restriction in clause 3" and replace with the following: "restrictions contained in clauses 3 and 4'"
2. In paragraph 1(d) delete the words "restriction in clause 3" and replace with the following: "restrictions contained in clauses 3 and 4";
3. In paragraph 3 insert after the word "Except" the following: "in accordance with paragraph 4 below, or; otherwise";

"4. The Covenantor shall not construct any building on the Burdened Lot which is not in accordance with clause 3(a) to (g) hereof UNLESS such building is contained wholly within the building envelopes depicted in the plans annexed hereto and prepared by Bosco Jonson Pty Ltd dated 22/9/2014. For the avoidance of doubt, if the Covenantor elects to construct a building in accordance with this clause, no other restriction contained in this instrument applies including, but not limited to, the requirement to obtain Mirvac's consent."

VARIATION OF COVENANT - COUNCIL ADOPTION ALTERNATIVE

That the restrictive covenant contained in Instrument of Transfer W413729L, be modified as follows:

1. In the section entitled "Creation and/or Reservation and/or Covenant" insert after the words "the Covenantor shall not, except" the following: "in accordance with paragraph Amendment A below, or, otherwise";

"Amendment A The Covenantor shall not construct any building on the Burdened Land which is not in accordance with paragraph (a) to (h) hereof UNLESS such building is contained wholly within the building envelopes depicted in the plans annexed hereto and prepared by Bosco Jonson Pty Ltd dated 22/9/2014. For the avoidance of doubt, if the Covenantor elects to construct a building in accordance with this clause, no other restriction contained in this instrument applies including, but not limited, to the requirement to obtain Mirvac's consent."

VARIATION OF COVENANT - COUNCIL AOOPTION ALTERNATIVE

That the restrictive covenant contained In Instrument of Transfer V074097S be modified as follows:

1. In the section entitled "Creation and/or Reservation and/or Covenant" insert after the words "the Covenantor shall not at any time hereafter, except" the following: 'in accordance with paragraph "Amendment A" below, or, otherwise";

"Amendment A The Covenantor shall not construct any building on the Burdened Land which is not in accordance with paragraph (a) to (g) hereof UNLESS such building is contained wholly within the building envelopes depicted in the plans annexed hereto and prepared by Bosco Jonson Ply Ltd dated 22/9/2014. For the avoidance of doubt, if the Covenantor elects to construct a building in accordance with this clause, no other restriction contained in this Instrument applies including, but not limited, to the requirement to obtain Mirvac's consent."

1. The plans of Bosco Jonson Pty Ltd referred to in the proposed variation show building envelopes which allow a building or buildings up to ten stories in height on the subject land with a 5 metre wide thoroughfare between Beach Street and Waterfront Place. It is essentially a diagrammatic representation of maximum building heights and minimum boundary setbacks. The maximum permitted height, including lift overrun, would be at 38.40 AHD.
2. The building envelope is substantially the same as the envelope shown in Figure 1 to Schedule 23 to the Design and Development Overlay which forms part of proposed Amendment C104 to the Port Phillip Planning Scheme. This is an amendment which has been adopted by the planning authority and is waiting approval by the Minister.

1. At a State planning policy level as set out in the State Planning Policy Framework (SPPF) and in the metropolitan planning strategy entitled Plan Melbourne there is a direction to provide new urban development opportunities in locations that have direct access to jobs, goods and services.
2. Clause 9 of the Port Phillip Planning Scheme requires:

Where relevant, planning and responsible authorities must consider and apply the strategy 'Plan Melbourne'; metropolitan planning strategy (Department of Transport Planning and local infrastructure 2014).

1. The relevant State policies are found at Clause 11 (Settlement), Clause 16 (Housing), clause 17 (Economic Development) and Clause 18 (Transport). These policies set out a framework for growth with an aim in particular to create new residential development opportunities that provide for consolidation, redevelopment and intensification of existing urban areas and on strategic redevelopment sites in the inner city.
2. Clause 16 seeks a diversity of new housing types to meet community needs and population growth in appropriate locations with an emphasis on higher density housing in or close to existing activity centres and on strategic sites that offer good access to services and transport. These policy directions then translate into the Local Planning Policy Framework (LPPF) under the headings of Clause 21.03 Ecologically Sustainable Development, Clause 21.04 Land Use, Clause 21.05 Built Form, Clause 21.06 Neighbourhood, 22.04 Heritage, 22.05 Subdivision and Clause 22.06 Urban Design Policy dealing with multi unit residential development.
3. The MSS for Port Phillip indicates that there is an expected population growth of over 30 per cent by 2026. At clause 21.02 'Context and Profile' the scheme seeks to focus development on strategic redevelopment sites. This is to provide significant opportunities for new residential development that is in close proximity to major activity centres generally in the form of higher density development, including tower-podium developments.
4. At the local level Clause 21.06-4 (Neighbourhood's Port Melbourne and Garden City) the provisions intend to balance growth in Port Melbourne and Waterfront Place in particular with existing uses. The objectives are to create new tourism, recreation and entertainment uses abutting the foreshore, and create support links between the foreshore, Bay Street and other parts of Port Phillip. An objective is to balance the needs of visitors with those of residents and the local community. The residential interface in Beacon Cove is to be managed along with future development including Princes Pier to minimise conflicts, and the existing neighbourhood character of Beacon Cove is to be maintained.
5. Turning from policy to the actual controls, the site is zoned Comprehensive Development Zone (CDZ1) Schedule 1. This zone applies to Beacon Cove and includes the 'Beacon Cove Development Port Melbourne' incorporated document which contains precinct and concept plans which are:
   • Beacon Cove Concept Plan no.1 (March 2004) and
   • Beacon Cove Precinct Plan no.1 (March 2004)
6. The subject site is located in Precinct 5 which is designated as the commercial and leisure precinct with a three storey height limit for the subject site.

1. There are a number of overlays that also apply to the site.
   • The Environmental Significance Overlay (ESO4):
   • Environmental Audit Overlay (EAO) which partially covers the site and
   • Heritage Overlay HO46 which applies to the railway station and part of the pier to the west of the site.
2. It is noted that none of these overlays triggers a permit in relation to covenant removal or variation.
   • The ESO4 that covers the site is aimed at protecting the ongoing workings of the commercial port and avoid potential conflicts. A permit is required for the construction of a building for use for accommodation.
   • The EAO appears to have been put in place to deal with potential contamination associated with the rail line.
   • HO46 covers a larger area than just the railway station and impacts on the western corner of the site.

1. Restrictive covenants outdate modern planning controls by a couple of centuries. They emerged during the great urban expansions of the mid 18th century as a form of land use control by private treaty. In the seminal case of Tulk v Moxhay (1848) 41 ER 1143 the Lord Chancellor held that a covenant which was negative in character could be enforced against a successor in title to the original covenant if the successor took with notice of the covenant.
2. Thus a covenant created both privity of contract, which enabled a covenant to be enforced by the original covenantee regardless of whether he or she still owned the land, and privity of estate, which means that both the burden and the benefit of the covenant runs with the lands affected. The benefit of a covenant thereby achieved the status of a proprietary interest, being an interest in land, capable of being transferred with or as part of the land.
3. Amendments to the Planning and Environment Act 1987 (the Act) in 1991 enabled a planning scheme to make provision for the removal or variation of restrictions under s.23 Subdivision Act 1988 which included restrictive covenants, subject to the qualifications set out in the Act (see ss. 6(2)(g) and 6A of the Act).
4. One of the qualifications is contained in s. 60 of the Act, which introduced threshold requirements which must be satisfied before a restrictive covenant can be removed or varied by a planning permit. In relation to restrictive covenants created after 24 June 1991, which include the covenants the subject of the present application, s. 60(2) of the Act provides:

(2) The responsible authority must not grant a permit which allows the removal or variation of a restriction (within the meaning of the Subdivision Act 1998) unless it is satisfied that 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 after its making, has consented in writing to the grant of the permit) will be unlikely to suffer -

(c) loss arising from change to the character of the neighbourhood; or

as a consequence of the removal or variation of the restriction.

1. If the threshold requirements are satisfied the responsible authority can proceed to consider an application for removal or variation of a restrictive covenant under clause 52.02 Port Phillip Planning Scheme. This clause relevantly provides that a permit is required before a person proceeds under s. 23 Subdivision Act 1988 to vary or remove a covenant.
2. There are two important provisions in clause 52.02. First, the purpose of the clause is stated:

To enable the removal and variation of an easement or restrictions to enable a use or development that complies with the planning scheme after the interests of affected people are considered.

Before deciding on an application, in addition to the decision guidelines in clause 65, the responsible authority must consider the interests of affected people.

1. "Affected people" has been held by the Tribunal to include persons who are not owners of land which is benefitted by the covenant but who consider their interests to be affected in a planning sense by the proposed removal or variation (Hill v Campaspe Shire Council [2011] VCAT 949 per Deputy President Gibson). This interpretation reflects the ordinary and natural meaning of the words of the clause.

1. There is no provision under the Planning and Environment Act 1987 or any other legislation for the payment of compensation for the removal or variation of a restrictive covenant by either planning scheme amendment or the grant of a permit under clause 52.02.
2. This means that the grant of a permit to remove a restrictive covenant amounts to a de facto expropriation of an interest in property without compensation. This a situation which the law will generally seek to avoid notwithstanding its recognition that the essential purpose of planning legislation is to control and limit the exercise of property rights (see 271 William Street Pty Ltd v City of Melbourne [1975] VicRp 15; 1975 VR 156).
3. The Tribunal considers that this has two consequences in relation to the application of s. 60(2) of the Act.
4. First, the provision is designed to protect proprietary interests and therefore should be interpreted as beneficial legislation and given as wide a meaning as the words of the sub-section reasonably allow.
5. Secondly, the standard of proof required to satisfy the threshold tests must have regard to the severity and consequences of the findings of fact. In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Dixon J. (as he was then) said at pp. 361 - 362:

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

1. More recently, in Kyriacko v Law Institute of Victoria Limited (2014) VSCA 322, the Court of Appeal pointed out that because the Tribunal is not bound by the rules of evidence, neither the provisions of s. 140 Evidence Act 2008 nor the common law principles established by Briginshaw are of strict application. However, the Court went on to say (at para 26):

Nevertheless, those principles reflect common sense notions of probability with respect to human conduct and it is entirely proper for the Tribunal to take them into account when considering allegations of serious misconduct.

1. The Court referred to what the High Court said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170:

[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.

1. The Tribunal considers that expressed in colloquial parlance it must be persuaded to a "comfortable level of satisfaction" that the threshold requirements are met rather than "only just satisfied".
2. Section 60(2) of the Act was considered by the predecessor of this Tribunal Pletes v City of Knox and Minister for Planning (1993) 10 AATR 155. The case was heard a short time after the enactment of the provision. The Tribunal comprised the President and two legally qualified members, and this legal firepower was intended to synthesise principles emerging from cases involving restrictive covenants that had come before the Tribunal up to that time.
3. The Tribunal enunciated a number of propositions of law at pp. 162 - 163. The include the following:

The expression "any other material detriment" in Section 60(2)(d) qualifies the loss mentioned in each of the sub-sections (a), (b) and (c) with the result that the loss referred to in each means material loss. (Russel, Crimmin, Harvey). Further the word "material" in this section means "important detriment, detriment of such consequence viewed on an objective basis. It does not include trivial or inconsequential detriment" (Russell, Harvey). We add that the word conveys to us the connotation of "real and not fanciful detriment" (Stokes). It is to be contrasted with the somewhat wider meaning of the use of the word "material" in Section 52 of the Act (Tjorpatsis).

1. This proposition does not sit entirely easily with a beneficial construction of the sub-section but is clearly sensible and practical and, given the composition of the Tribunal, is of compelling authority so far as this Tribunal is concerned.
2. The Tribunal also said:

In performing the exercise required by Section 60(2) it seems to us essential to look at the purpose and effect of the covenant as one of the factors relevant in determining the likelihood of any loss or detriment in the event of removal or variation.

1. The Tribunal stated that in applying the tests set out in s. 60(2) it is not a question of balancing the loss suffered by a benefiting owner in each of the categories set out in paragraphs (a) to (d) against the planning benefits of removal or variation of the covenant. The tests must be applied in absolute terms. Consideration of the planning merits can occur only if the tests are satisfied and the discretion to grant a permit thereby enlivened. This Tribunal respectfully agrees.
2. Moreover the reference in sub-section (2) to "the owner of any land benefited by the restriction" means that the Tribunal must take into account the circumstances of all owners who enjoy the benefit of the covenant, not just those benefitting owners who have objected to the application.

1. The terms of a restrictive covenant are set out in writing, usually in the instrument which transfers ownership of the land. The principles governing the proper construction of a covenant are the same as those applying to the construction of any written document. The Tribunal must give affect to the intention of the parties. This is to be ascertained from the words used in the instrument given their ordinary and colloquial meaning. See Bradbrook Neave, Easements and Restrictive Covenants in Australia, 2nd edn. p. 364 ff.
2. In this case it is clearly the intention of the parties to impose development and performance standards on the use and development of the burdened land unless Mirvac (Beacon Cove) Pty Ltd or its nominee agrees to dispense with or vary those standards. The covenants specify a particular built form that may not be departed from without Mirvac's consent, and sets out certain performance criteria such as prohibitions on hanging out washing on balconies or displaying advertising signs exceeding specified dimensions and at certain locations.
3. The only control over the actual use of the land is the prohibition of the use of Lot 2 for a dwelling or accommodation. The covenant does not confine the use of the land to its initial purposes, namely, gymnasium, swimming pool, child minding centre, and tennis courts.
4. It is critical to appreciate that the effect of the covenant is to give Mirvac complete and unfetted control over the future development and, to a limited extent in the case of Lot 2, the use of the land other than as specified in the covenants. Mirvac is able at any time to allow any form of development of the land. A development approved by Mirvac or its nominee does not breach the covenant. However, Mirvac is neither a benefiting owner nor a contractual party to the covenants.

1. It is convenient to deal first with the restriction set out on Plan of Subdivision 344341D. This restriction applies for the benefit of Lots 1 and 2 on that plan. Lot 2 is owned by the applicant, and the owner of Lot 1 has consented to the removal of the restriction. In these circumstances the threshold tests are satisfied in relation to this restriction, and the Responsible Authority is therefore empowered to exercise the discretion conferred by clause 52.02 of the planning scheme to grant a permit for the removal or variation of the restriction.
2. In relation to the two other restrictions the Tribunal has on a number of occasions adverted to the difficulty of satisfying the threshold tests laid down by s. 60(2) in the absence of a specific development proposal which can replace the covenant. This is because without a specific proposal there are almost infinite possibilities for the use and development of the land, and it can rarely be said that none of them is unlikely to result in the type of loss or detriment referred to in the sub-section.
3. The sub-section requires the Tribunal to be affirmatively satisfied that the loss or detriment is unlikely (see McFarlane v City of Greater Dandenong [2002] VCAT 696 cited with approval in Carabott v Hume City Council (1992) 22 AATR 261, a decision of a strongly constituted division comprising Judge Wood, Deputy President Macnamara (as he then was), Senior Member Byard and Member Moles).
4. In Giosis v Darebin City Council [2013] VCAT 825 the Tribunal said at para 17:

[17] 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.

1. This was followed by Charan v Wyndham City Council [2014] VCAT 219 where the Tribunal said at para 14:

[14] The Applicant has not persuaded me that the removal of the covenant will satisfy the requirements of section 60(2) of the Act. This is because an application for the complete removal of a restrictive covenant places in issue "every possible detriment of every possible development enabled by the removal". The absence of a concurrent development makes it very difficult for me to be satisfied that every possible form of development will be unlikely to cause the types of losses specified in section 60(2) of the Act. Accordingly, I consider that the removal application is barred by section 60(2).

1. Similar expressions of opinion are to be found in A & K Corporation Pty Ltd v Darebin City Council [2014] VCAT 178, Tsourounak Ice v Darebin City Council [2014] VCAT 224, Singh v Darebin City Council [2014] VCAT 1169 and Imbrogno v Boroondara City Council [2014] VCAT 163.
2. In this case there is no specific development proposal before the Tribunal for which the applicant seeks approval. Moreover it is common ground that the future planning of the land is in a state of flux. Proposed Amendment C104 to the Port Phillip Planning Scheme has been adopted by the council and is currently before the Minister for approval. There would in normal circumstances be an expectation that the amendment will be approved in the adopted form. However, in this case the expectation is somewhat less, first, because with the change of government there will be a new Minister whose views are largely unknown, and secondly, because the amendment as adopted departs in significant respects from the amendment recommended by the Ministerial Panel which considered the matter (see tab 4 Council's folder of documents).
3. This means that there are four scenarios.
   • Amendment C104 is approved in its adopted form.
   • Amendment C104 is approved in the form recommended by the panel.
   • Amendment C104 is approved in a different form decided by the Minister with or without departmental advice.
   • Amendment C104 is rejected, leaving the land subject to the existing planning controls.
4. It is clear that these scenarios give rise to and almost infinite number of developments that could occur on the subject land when the planning controls emerge from the present state of flux, in terms of both built form and land use. The Tribunal could not be persuaded to the comfortable level of satisfaction required that none of these possible developments would be unlikely to give rise to the loss or detriment referred to in s. 60(2). It could not be satisfied even if the lesser test of the balance of probabilities is applied.
5. Accordingly the threshold tests cannot be satisfied in relation to the application for removal of the covenants from Lots 2 and 3 and this part of the application must be rejected.

1. The further amendment of the application to confine the variation of the covenants to the building envelope described in the Bosco Jonson plans would impose specific limits on the form of any future development of the land without actually specifying that form. The question is whether this satisfies the threshold tests laid down by s. 60 (2) of the Act.
2. To assess the loss or detriment referred to in s. 60(2) it is first necessary to determine what is capable of being lost, or put another way, what are the benefits conferred by the covenant.
3. In this case it is said by or on behalf of the benefitting owners that the covenants assure a low rise form of development of the subject which is consistent with the overall planning of the Beacon Cove estate as represented by the developer, Mirvac. Any change to this form of development would change the character of the neighbourhood in a way which causes loss. The neighbourhood for this purpose was agreed by the experts who gave evidence as the area bounded by yellow highlighter on the plan Exhibit A2, although Mr Shepherd would exclude the small area to the north-east marked with red highlighter.
4. However upon closer examination this benefit is revealed as illusory. It is illusory because Mirvac or its nominee has the absolute and unfetted power to at any time approve any form of redevelopment of the subject land. The benefit, or assurance, that the benefiting owners have is no more than an assurance that the land will remain low rise unless and until Mirvac or its nominee approves some other form of redevelopment, and the hope that this may not happen.
5. So the tests laid down by s. 60(2) must be applied in the context that the benefitting owners have very little to lose. The main practical benefit of the covenant is held by Mirvac, which has the power to approve any form of development on the subject land. This power is of some economic value to Mirvac. However Mirvac is not a benefiting owner. It is an objector whose interests must be considered under clause 52.02 of the planning scheme if the threshold tests are satisfied. It is convenient to consider how each of the tests applies in this context.

1. The Tribunal accepts the evidence of Mr Les Brown, a very experienced valuer, and is persuaded on both the balance of probabilities and to a comfortable level of satisfaction that the proposed variation of the covenants is unlikely to occasion financial loss to any benefitting owner. His analysis of sales demonstrates that the benefit of the covenant adds no value to the benefitting owners land. It is most unlikely given the distance separating the benefitting lands from the burdened lands that the former would sell for anything less without the benefit of the covenant.

1. The distance between the subject land and the benefitting lands ensures that the proposed variations could not have any direct amenity affects on the benefitting lands. It was put that benefitting owners would suffer a loss of amenity when the perambulating along the foreshore because of the shadowing effect of a redevelopment. The Tribunal is satisfied that the proposed envelope will curtail any overshadowing to a reasonable level. Given the tenuous nature of the benefit conferred by the covenants any loss of amenity would certainly not be material.

Loss Arising From a Change of Neighbourhood Character

1. The redevelopment of the subject land in a manner allowed by the proposed variation would change the character of the neighbourhood. Whether that change is for the better or worse the Tribunal is unable to say on the material before it, in particular in the absence of a specific redevelopment proposal. On the one hand benefitting owners say that they will lose the low rise ambiance that the covenants presently lend to the neighbourhood. On the other hand the site is currently in derelict condition, and a low rise redevelopment is unlikely to be attractive to a developer. What can be said with a comfortable degree of satisfaction is that given the illusory nature of the protection afforded by the covenants any loss arising from a changed neighbourhood character is unlikely to be material.

1. There was no evidence of any other material detriment to the benefitting owners before the Tribunal. On the contrary it is strongly arguable that a variation of the covenants would confer a material benefit on the benefitting owners for two reasons.
   • First, the building envelope introduced by the variation locks in specific limits to development in terms of both boundary set backs and, more importantly, building height. The envelope requires a thoroughfare between Beach Street and Waterfront Place which is likely to be confined to pedestrians. This responds to a major concern expressed by residents.
   • Secondly, the removal from the covenants of what are described as the arbitrative powers of Mirvac would place benefitting owners in a much stronger position and give them real protection against redevelopment which does not accord with the building envelope. The proposed variations provide no control over the future use of the land, but neither do the existing covenants save in relation to dwellings, a use which is not of concern to the benefitting owners.
2. The proposed variation does not specifically seek the removal of Mirvac's arbitrative powers. However, this is a hearing de novo and the matter is at large before the Tribunal. It is open to the Tribunal to alter or modify the variations proposed by the permit applicant.
3. The Tribunal sees the removal of Mirvac's powers as conferring a substantial benefit on the beneficial owners. Mirvac may have a different view. That is something to be dealt with in exercising discretion under clause 52.02. However Mirvac has no standing as a benefitting owner to claim protection under s. 60(2) of the Act.
4. Finally, in relation to the threshold tests it is necessary to consider the position of the council. In April 2014 the council was appointed a Committee of Management under the Crown Land (Reserves) Act 1978 of part of the foreshore which enjoys the benefit of the covenant. The council contends that as the Committee of Management it is an occupier of the land and therefore enjoys the benefit of the covenants and the protection given by the s. 60(2) of the Act. It says that it would suffer material detriment if the covenant was removed or varied.
5. It is not necessary for the purpose of this decision to decide definitively as to the status of the Council. It seems to the Tribunal that the probable situation is that by virtue of s. 78(1) Property Law Act 1958 the council, as a deemed occupier, may enjoy the benefit of the covenant burdening Lot 2 to the extent that it restricts the use of that land. However, the benefit of the covenant to the council is as illusory as it is to all the benefitting owners.
6. The council has no proprietary interest in the land benefitted by the covenant. Its interest is as a manager of the land under the Crown Land (Reserves) Act 1979. It is not possible to see how that interest could be in any way affected by the variation of the covenant over Lot 2 to remove the prohibition of the use of that land for dwellings or accommodation. Taken together with the ephemeral nature of the protection - Mirvac could approve a multi-dwelling development at any time - the Tribunal is comfortably satisfied that the council would suffer no material detriment.
7. The Tribunal concludes that in relation to the proposed variations of the covenants the threshold tests imposed by s. 60(2) of the Act are satisfied.

1. Mr Gerhard Correa presented a well thought out and commendably researched submission arguing that the restrictive covenants are part of a building scheme which benefits the entire low scale elements of the Beacon Cove estate. However, the Tribunal is inclined to accept the argument put by Mr Pitt SC, who appeared for the Port Phillip City Council, that the requirements for a building scheme set out by the Supreme Court in Vrakas and Mills (2006) VSC 463 are not satisfied in the present case.
2. Ultimately, it is not necessary to decide this point because neither Mr Correa and those he represented nor any other interested objectors sought to rely on the legal benefits a building scheme or to rely upon the protection afforded by s. 60(2) of the Act if such scheme exists. They relied on the claimed existence of a building scheme only to underscore the strength of their expectation that any redevelopment of the subject land would remain low rise. This is a matter to be considered in the exercise of planning discretion under clause 52.02 of the planning scheme, a matter to which the Tribunal now turns.

1. The Tribunal is now required to exercise the discretion conferred by clause 52.02 of the Port Phillip Planning Scheme to grant or refuse a permit to vary the restrictive covenant. The exercise of discretion must be informed by the relevant planning considerations expressed or arising by necessary inference from the Act and the planning scheme.
2. The first matter to consider is the purpose of the control, which as previously mentioned is:

To enable the removal and variation of an easement or restrictions to enable a use or development that complies with the planning scheme after the interests affected people are considered.

1. The reference to use or development suggests that a specific proposal has been put forward, and as mentioned above most applications for variation of a restrictive covenant are accompanied by a specific development proposal so as to facilitate the application of the tests set out in s. 60(2) of the Act. However, the language is sufficiently wide to include a development plan in the form of a building envelope of the type proposed as part of the variation sought in this case. Such a plan does not condescend to specifics, but it does place limits on built form which are important in assessing possible amenity impacts and consistency with neighbourhood character.
2. The phrase "that complies with the planning scheme" must be construed as including compliance with a seriously entertained amendment of the planning scheme. Otherwise the phrase would effectively remove the power that clause 52.02 confers in cases such as the present, which cannot have been the intention of the draftsmen.
3. Moreover, the building envelopes proposed by the variation are capable of complying with the current planning controls because the responsible authority has the power to vary the development plans which form part of the current controls to allow a different form of development of the land.
4. The final phrase "after the interests of affected persons are considered" must in the context of a planning scheme made under the Planning and Environment Act 1987 mean the "planning interests" of those persons. To remain within power it could not be construed as extending to the emotional, cultural or economic interests of "affected persons". As mentioned earlier, affected persons are not confined to those who enjoy the legal benefit of the covenant.
5. In any event, the purpose of the control as set out in the planning scheme is not to be given a literal interpretation, nor is it of mandatory or determinative application. It is but one of the number of relevant factors to be taken into account in reaching a decision.
6. The next matter to consider is whether the proposed variation enjoys policy support. The Tribunal considers that there is strong policy support for a medium rise development of up to 10 stories that would be permitted by the proposed building envelopes which form part of the proposed variation.
   • It would further the implementation of urban consolidation objectives which seek to contain urban expansion and optimise the use of existing urban infrastructure.
   • The suitability of the site for more intensive development has been emphasised in a number of strategic planning studies outlined in the Tribunal's summary of the history of the matter.
   • This suitability is underscored by the proximity of the site to major recreational facilities along the beach and on Port Phillip Bay.
   • The land is particularly accessible to the CAD with its many recreational and cultural outlets. The light rail which provides this access terminates only a few metres from the land.
   • The site is presently in a state of decay and in need of immediate revitalisation in the interests of all residents of Beacon Cove.
   • The land is an island site which significantly attenuates any external amenity impacts of redevelopment. The only low rise residential interface is across Beach Street immediately to the north.
7. The Tribunal is also required by s. 84B(2)(g) of the Act -

To have regard to any amendment to a planning scheme which has been adopted by the planning authority but not, as at the date on which the application for review is determined, approved by the Minister or the planning authority.

1. Proposed Amendment C104 answers this description. The proposed variation of the covenants will mirror the planning controls to be implemented by the proposed amendment as adopted. If the amendment is approved in the adopted form any proposal for which planning approval is granted will satisfy the covenants. On the other hand if the amendment is adopted in some other form the benefitting owners will be protected against a proposal which does not comply with the covenant as varied.
2. In this case, Amendment C104 should be given significant weight because it is the product of the comprehensive consultation and elaborate strategic and urban design studies referred to above. These studies are unanimous in their evaluation of the subject land as appropriate for intensive development, and is suitable for a landmark development at an important gateway to Melbourne.
3. The orderly planning of the area requires consideration of compatibility with neighbourhood character. In this case this depends upon which perspective is viewed. A 10 storey development is entirely consistent with the towers to the west along the waterfront ranging up to 14 stories in height. It can be seen as an extension of that character and a natural link to similar medium rise apartment development to the east along Beach Street. On the other hand development of this scale could be seen as out of character with the low rise hinterland of Beacon Cove to the north and north west, and quite different to what was initially constructed on the site. The Tribunal considers that the former perspective fits more easily, but at worst this factor is neutral.
4. Clause 65 requires a consideration of the amenity impacts of the proposal. As mentioned, these impacts, particularly overshadowing of Waterfront Place and the foreshore, will be constrained by the building envelope, and the other impacts such as noise, overlooking and invasion of privacy will be limited by the island nature of the site and the application of the development standards set out in clause 55 of the planning scheme (ResCode) when a specific development proposal is put forward.
5. The primary amenity impact on the residential area immediately to the north around Park Square will be visual, including the obscuring of views towards the bay and of ships docked at Station Pier which is presently enjoyed by some of those properties. This outlook is presently protected by the restrictive covenants and by the existing planning controls which require adherence to a Concept Plan and a Precinct Plan which require low rise development of the subject land. However, the protection of the covenant can disappear at any time by fiat of Mirvac or its nominee, and both the Concept Plan and the Precinct Plan can be changed by the Responsible Authority without reference to third parties or any rights of review. The outlooks are not locked in place by any other planning control in contrast, for example, with the Surf Coast Planning Scheme.
6. In these circumstances the continued enjoyment of views must be regarded as fortuitous and not founded upon any compelling planning consideration. A number of residents emphasised that when they bought their properties Mirvac had represented to them that land would remain low rise in built form and would provide community facilities, which in fact it did for some years. These representations clearly strengthen the expectations of those residents, but they cannot provide a sound planning basis for them.
7. In relation to traffic, the Tribunal accepts the largely uncontested evidence of Mr Stephen Hunt, an experienced traffic engineer, that development contained by the building envelopes proposed in Amendment C104 will not give rise to any traffic problems.
8. Finally, the position of Mirvac requires consideration. Mirvac is not a benefitting owner, not does it any longer own land in the area that would enhance its status as an objector. It has objected nonetheless as it is entitled to do.
9. Mirvac's power under the existing covenants as the absolute arbiter of future development is a right which is of some financial value. It is not a proprietary right, and its value at the present time is limited because Mirvac cannot override the existing planning controls simply by approving a development that is not permissible under those controls. However, if those controls were to change by the approval of Amendment C104 either in its adopted form or some other form that provides opportunities for significantly more intensive development Mirvac would have considerably greater financial leverage. It would in effect have the right to veto development which does not accord with the existing covenants.
10. However, the economic loss that Mirvac may suffer if its arbitrative powers are removed is not an economic loss of the type recognised as a relevant planning consideration (see Gantidis v Kentucky Fried Chicken Pty Ltd (1979) CLR 675). The grant of a permit to vary the covenant in a way that removes Mirvac's power will not put in jeopardy facilities enjoyed by the community or presently planned for it. Nor is it a loss that can be brought into calculation under any other relevant planning consideration.
11. On the contrary the Tribunal considers that it is very much in the interests of orderly and proper planning that a commercial entity which is no longer involved with the land, and whose decisions are not required to be made on the basis of relevant planning considerations under the Act and the planning scheme, and whose decisions are not reviewable by a Court or this Tribunal, be relieved of the unfetted power to dictate the future of the subject land. It would be anomalous if a decision of the Responsible Authority to grant development approval for the subject land could be stymied by the exercise of a right of veto by a private third party. Proper planning requires the removal of this anomaly. See Lento v Whittlesea City Council [2004] VCAT 2101 particularly at para 52).

1. For these reasons the Tribunal is disposed to grant a permit to vary the covenants in the manner sought by the applicant subject to some drafting editing and with the additional change to remove the arbitrative powers of Mirvac.
2. The Tribunal is proposing to make the following further orders.
3. A permit is granted for:
   1. the variation of the restriction contained in Instrument of Transfer W413729L relating to the land more particularly described in Certificate of Title Volume 10330 Folio 310 as follows:

1.1 delete the words "except with the written consent of Mirvac (Beacon Cove) Pty Ltd ACN 066 913 497 (Mirvac) or its nominee";

1.2 delete paragraphs (a) to (h) inclusive and the proviso and substitute the following:

(a) construct, add to or extend any building on the Burdened Land unless such building is contained wholly within the building envelopes depicted in the plans annexed hereto and prepared by Bosco Jonson Pty Ltd Ref. 26828 dated 19 September 2014;

(b) permit any laundry or other clothing to be dried or aired on the Burdened Land other than within a building constructed on the Burdened Land.

1. the variation of the restriction contained in Instrument of Transfer VO74097S in relation to the land more particularly described in Certificate of Title Volume 10330 Folio 311 as follows:

2.1 delete the words "except with the written consent of Mirvac (Beacon Cove) Pty Ltd ACN 066 913 497 (Mirvac) or its nominee";

2.2 delete paragraphs (a) to (g) inclusive and substitute the following:

(a) construct, add to or extend any building on the Burdened Land unless such building is contained wholly within the building envelopes depicted in the plans annexed hereto and prepared by Bosco Jonson Pty Ltd Ref. 26828 dated 19 September 2014;

(b) permit any laundry or other clothing to be dried or aired on the Burdened Land other than within a building constructed on the Burdened Land.

1. The variations of the covenants referred to in paragraphs 1.1 and 2.1 above were not raised or debated at the hearing and the parties have had no opportunity to consider and address them. To provide parties with an opportunity to be heard in relation to these variations the hearing will be reconvened on 21 January 2015 at 10.00am. Submissions will be confined to the variations proposed in paragraphs 1.1 and 2.1 and any comments parties may have regarding the drafting of the other variations. Parties who do not wish to make a submission are under no obligation to attend.
2. So far as the restriction contained in the Plan of Subdivision is concerned, the benefitting owners have consented to its removal. No purpose is served by continuing the restriction which is in any event fully replicated in the other two covenants as varied. The Tribunal will grant a permit for the removal of this restriction.