RESPONDENTS/OBJECTORS: Summerhill Estate Residents

Lots 85 and 86 on Plan of Subdivision No. 6275 being the land in Certificate of Title Volume 4080 Folio 000.

Land on the south-eastern corner of the intersection of Summerhill Ave and Lloyd Street with a frontage of 42.850m to the southern side of Summerhill Ave and 43.891m to the eastern side of Lloyd Street and having an area of 1880.7m2.

The decision of the Responsible Authority is set aside and a permit in respect of permit Application No. 538/98 is granted and directed to be issued for land at 2 to 4 Lloyd Street, Malvern East. The permit allows the construction and use of seven double storey dwellings in accordance with the endorsed plans hereafter provided for and subject to the following conditions:

1. Before the use and/or development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. Such plans must be drawn to scale with dimensions and three (3) copies must be submitted. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans submitted with the application but modified to show:

* south facing first floor window to bedroom 2 in dwelling 3;

* east facing first floor windows to bedrooms 2 & 3 in dwellings 5, 6, & 7;

* all east facing windows at first floor level in the east elevation of dwelling 1;

(ii) fencing along the Lloyd Street frontage for dwellings 5, 6 and 7 to be a maximum of 1.2m high and of open construction to the satisfaction of the Responsible Authority;

(iii) all garages to have minimum internal dimensions to the satisfaction of the Responsible Authority.

2. The right of way lane adjacent to the southern boundary of the subject site is to be reconstructed at the permit holders expense and to the satisfaction of the Responsible Authority.

3. The area of the site adjacent to the right of way is to be owned and maintained by the permit holder and any subsequent owners of the dwellings to the satisfaction of the Responsible Authority.

4. The use or development allowed by this permit and shown on the drawings and/or schedules endorsed to accompany the permit must not be amended for any reason without the consent of the Responsible Authority.

5. This permit will expire if one of the following circumstances applies:

(a) the development is not started within two years of the date of this permit;

(b) the development is not completed within four years of the date of this permit; or

(c) the use is not started within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

6. Before the use and/or development starts, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:

(a) constructed to the satisfaction of the Responsible Authority;

(b) properly formed to such levels that they can be used in accordance with the plans;

(c) surfaced with an all-weather sealcoat or surfaced with crushed rock or gravel to the satisfaction of the Responsible Authority.

(d) drained and maintained to the satisfaction of the Responsible Authority;

(e) line-marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority;

7. Parking areas and access lanes must be kept available for these purposes at all times.

8. The vehicle crossing must be constructed to Council's standard vehicular crossing specifications.

9. Before the use and/or development allowed by this permit starts, a landscape plan generally in accordance with the Landscape Concept Design prepared by Matthew McFall (Reference Dwg LD-26-98A) must be submitted to and approved by the Responsible Authority. When approved such plan will be endorsed as part of this permit.

10. Before the use allowed by this permit starts, landscaping works as shown on the endorsed landscape plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

11.(a) The screening measures hereby required must be permanently fixed at the time of completion to the satisfaction of the Responsible Authority so that no unreasonable overlooking is possible and such screening must be maintained to the satisfaction of the Responsible Authority.

(b) The visual screening required by this permit must have no more than 25% openings.

12. Adequate provision must be made for the storage and collection of garbage and other solid wastes within the curtilage of the site. This area must be properly graded and drained and screened from public view to the satisfaction of the Responsible Authority.

13. The drainage of the site must be to the satisfaction of the Responsible Authority and the discharge of water from the land affected by this permit must be controlled to prevent any discharge onto any adjacent property or street other than by means of an underground pipe discharged to a point nominated by and to the satisfaction of the Responsible Authority.

* This permit is for the use of the land/or buildings and does not constitute any authority to:

- Carry out any building works or occupy the building or part of the building unless all relevant permits are obtained;

____________________ _____________________

Mr Colin Bowden, town planner of Bowden Verhoeven, Town Planners and Local Government Consultants, appeared for the Responsible Authority. In addition to oral arguments he presented written submissions supported by a bundle of attached documents.

Mr Ian Pitt, solicitor of the firm of Best Hooper, solicitors, appeared for the Respondent/Objectors being the Summerhill Estate Residents Association Inc. and 40 individual objectors whose names and addresses appear on a document headed "LIST OF OBJECTORS - APPEAL NO. 1998/094208" and bearing the notation " Mr Pitt's clients" which is attached to the file of the Tribunal. In addition to presenting written and oral submissions Mr Pitt called Mr James Coomes, town planner and land surveyor, as a witness. Mr Coomes presented a written report and gave oral evidence.

Mr Stephen Jones, barrister, appeared on the instructions of Stephen Moule & Co for Zullaphella Pty Ltd, the Applicant for Review and Permit Applicant. In addition to written and oral submissions Mr Jones called four expert witnesses who each gave oral evidence and presented written reports. They were Mr Noel Francis McKernan, architect, Michael Durkin, traffic engineer, Mathew McFall, landscape architect and Edward John Zagami, town planner.

Written statements on behalf of Richard Clarke and G & L Czydel were received. Various plans, photographs and other documents were tendered as attachments to written submissions or as separate exhibits. The submissions and evidence presented in documentary form has been retained on the file of the Tribunal.

A model of the proposed development was produced and tendered.

Since the hearing we have inspected the land and locality.

Application under s.77 of the Planning and Environment Act 1987 (PE Act)

for review of a decision to refuse to grant a permit.

7 double storey dwellings including three attached dwellings.

Residential `C' Zone under the Stonnington Planning Scheme.

"1. The proposed development is inconsistent with the single dwelling covenant applicable to the site.

2. The proposed development does not meet the requirements of the Good Design Guide.

3. The proposal would result in an overdevelopment of the site.

4. The proposed design is inconsistent with surrounding neighbourhood character."

"1. The proposed development is not inconsistent with the single dwelling covenant applicable to the site.

2. The proposed development satisfactorily meets the requirements of the Good Design Guide.

3. The proposal would not result in an overdevelopment of the site.

4. The proposed design is not inconsistent with surrounding neighbourhood character."

At the commencement of the hearing Mr Jones sought leave to amend the permit application by substituting new plans for those lodged with the permit application. The plans to be substituted had been circulated to the other parties on the 24 May 1999, well before the hearing, and there was no objection to the amendment. These new plans dated 11 May 1999 were marked as exhibit "J1". The amendment was granted.

1. This is a second proposal for a development of this sort on the site. The earlier proposal was for a more intense 11 dwelling development. It was subject of a planning appeal before the Administrative Appeals Tribunal (predecessor to this current Tribunal). That case was Zullaphella Pty Ltd v City of Stonnington, Guest & Ors, Appeal No. 1997/63071. The Tribunal in that case set out a convenient description of the land and locality which we adopt. The following passage commences on page 5 of the reasons given by the Tribunal in that case:-

"The appeal site occupies the south-east corner of Lloyd Street and Summerhill Avenue in East Malvern. It is a double block which is currently occupied by a red brick gable roof church hall possibly dating from the inter-war period and a more recently constructed and unremarkable single storey church building. Both are set in a fairly open lawn setting with scattered trees. One or two of these trees are certainly worthy of retention, if at all possible. There is quite a substantial, almost 3m crossfall from Lloyd Street to the eastern boundary onto Summerhill Avenue. Careful site design could no doubt make some use of the views available owing to this fall and the elevation of the site.

Opposite the site, on the north-east corner of Lloyd Street and Summerhill Avenue is the East Malvern Primary School or Lloyd Street school. The main two storey, face brick building which has an effective height of three storeys, extends parallel to Lloyd Street and around the corner into Summerhill Avenue. The building is set back some 7 to 9m from Lloyd Street, although the survey plan "site analysis" fails to make any observations about this setback. This setback is attractively landscaped. It would be fair to say that the school is the most dominant building element in both streets.

All other development fronting Lloyd Street and Summerhill Avenue is residential in nature varying between single and double storey detached dwellings dating mostly from the Federation to inter-war periods, all of which are set on landscaped garden allotments. A number of the lots in the general neighbourhood support detached dwellings of more recent construction most of which are double storey.

Immediately abutting the low side of the site and to the east in Summerhill Avenue is a single storey, Californian bungalow style dwelling set back 9.3m from Summerhill Avenue. To the south and across the rear right of way, is the part two storey garage and studio to a single storey, slate roofed dwelling fronting Manningtree Road (sic, Manning Road). This property has its side boundary to Lloyd Street and is set back between 1 and 2m from the street behind a high brick wall. The garage structure to its rear has an interesting gable roof line, possibly influenced by its proximity to the church hall which has until recently been used as a kindergarten.

Summerhill Avenue and Lloyd Street are relatively narrow residential streets with room for only one through lane of traffic if car parking occurs on both sides of the road. Parking restrictions apply to both frontages of the appeal site, due to the proximity of the school. In addition there is a school crossing within the Summerhill Avenue frontage, approximately 9m from the eastern boundary.

The undulating topography, narrow roadways and regularly spaced dwellings with off-street parking all set behind mature gardens combines to make this a very pleasant and attractive neighbourhood. The school building introduces a dominant element at a much larger scale to surrounding houses. However, due to the use of materials and other elements found within the area, the landscaping to Lloyd Street and the spaciousness of the playground, this dominance provides an interesting counterpoint rather than a sense of intrusion for the surrounding residential area."

2. The principal issue in that earlier case was the question of neighbourhood character. The Tribunal concluded that a better design than that proposed could be achieved and the proposal was rejected. However it is clearly implicit in the reasons given that the Tribunal accepted that this is a site suitable for a multi-dwelling development of the sort proposed. Indeed the Tribunal said in its conclusion on page 13 (amongst other things):-

"I am not certain that 11 dwellings for this site is totally out of the question however, a less block like and uniform height structure is certainly called for."

3. The current proposal, for seven dwellings, has been substantially redesigned and is, of course, a substantially less intense development than the earlier proposal. The redesign has been carried out with an eye to the various criticisms made by the Tribunal of the earlier proposal.

4. This circumstance led Mr Jones, who appeared for the Applicant Company, to remind us of the cases of Amoco Australia v City of Berwick 1 PABR 166 and Benc v City of Doncaster & Templestowe, an unreported Planning Appeal No. P86/2205. In Amoco the Planning Appeals Board (an earlier predecessor of this Tribunal so far as the review of planning decisions is concerned) held that a permit applicant could make repeat permit applications and repeat planning appeals but that in determining such appeals the Tribunal should take the earlier decision into account and give it great weight and that generally speaking the earlier decision should not be reversed unless the Applicant can show a change of circumstances which warrant a different view.

5. Mr Jones also quoted the following passage from page 4 of the reasons in the Benc decision namely:-

"In the case of a different but similar application which has been prepared in accordance with the advice of the Board, equity or fairness demands that considerable weight be given to the fact that the Applicant has endeavoured to accommodate suggestions as to what would be appropriate."

6. This Tribunal is not bound by previous decisions of the Tribunal in relation to earlier cases, even in relation to similar proposals for the same land. Nevertheless, we are attentive to the previous decision and to the considerable extent to which this new proposal has sought to avoid the criticisms and adopt the suggestions that the Tribunal made in relation to the earlier proposal. This is, indeed, a considerable improvement on the earlier proposal. Having said that, we must still assess it on its merits. The new proposal should not necessarily be approved just because it adopts the suggestions and avoids the criticism of the earlier one. Nevertheless, as we have said, we have noted these matters and taken them into consideration.

7. We note that the site is no longer used for church purposes.

8. It is constituted by two allotments namely Lots 85 and 86 on a Plan of Subdivision No. 6275 that dates back to the First World War. The objectors are fond of referring to this subdivision as the "Summerhill Estate". The two allotments are, at present, on a single certificate of title. The title is endorsed with the following encumbrance:-

"THE COVENANT contained in Instrument of Transfer Numbered 839142 in the Register Book that there may not be erected on either of the said lots any buildings other than one dwelling house only with such outbuildings as are customarily used in connection with the dwelling house and that the roof of such dwelling house or any part thereof may not be of iron."

9. The current church and church hall existing on the land have clearly been erected in contravention of this covenant. Mr Pitt, quite reasonably, suggests that it can be inferred that any owners of dominant tenements (ie land in the original subdivision enjoying the benefit of the restriction imposed on the subject land by the covenant) have acquiesced in this contravention.

10. The original "Summerhill Estate" subdivision was into 102 allotments. The eastern end of the subdivision fronts the western side of Darling Road with most of the lots fronting to east-west access roads of Rothesay Avenue and Summerhill Avenue which are connected at the western end of the subdivision by Fell Crescent. Lloyd Street, originally called Osborn Road, runs from Manning Road (which is the next east-west road south of Summerhill Avenue) across Summerhill Avenue to form a `T' intersection with Rothesay Avenue. This north-south road marks off the western quarter of the subdivision from the balance. It also forms one of the four entrances or "gateways" to the subdivision.

11. Most of the allotments created by the subdivision have been developed with detached houses for residential use. The exceptions, apart from the subject site in these proceedings are Lots 1 and 2 at the north-east corner of the subdivision on the northern corner of the intersection of Rothesay Avenue with Darling Road and the school site. Lots 1 and 2 are a public park. The school occupies 16 allotments between Rothesay Avenue and Summerhill Avenue with a frontage to Lloyd Street. It is a substantial departure from the pattern of residential development and, indeed, from the single dwelling restrictive covenants imposed on the allotments within the subdivision. However it has clearly been created to serve the residents of the subdivision and the area generally and can be viewed as complimentary to the housing.

12. The imposing original two storey building of the school, which is really of a three storey scale, does not comply with the covenant in relation to the allotments upon which it has been constructed. Mr Pitt referred to this at paragraph 1.3.5.9 and in subsequent paragraphs of his written submissions. He referred to three English decisions namely re 6, 8, 10, and 12 Elm Avenue, New Milton, Ex parte New Forest District Council (1984) 3 All ER 632, Brown & Ors v Heathlands Mental Health Service Trust (1996) 1 All ER 133 and Greenwich Health Care National Health Service Trust v London & Quadrant Housing Trust & Ors (1998) 3 All ER 437. Those cases and others referred to therein indicate that a restrictive covenant of this sort will not be enforceable against a public authority acquiring and using land for public purposes pursuant to statutory authority, whether or not the acquisition is by compulsion.

13. We have said that we agree with the description given by the Tribunal of the area in the previous case, including description of it as a pleasant and attractive residential area. This is true although the school and church developments on the eastern side of Lloyd Street represent significant interruptions in that part of the subdivision to the residential consistency of the whole.

14. The area retains a notable 1930s Californian Bungalow "feel" but the consistency of style in the area has a significant qualification imposed upon it by the introduction of a significant intrusion of late 20th century style houses in place of a number of the original houses. These new dwellings are usually substantial in scale, two storey in height and out of keeping with the pre World War II style of the original housing stock. Such features as double garage doors visible from the street in house building frontages are, in some cases, not only noticeable but intrusive. So far as the style and scale of the original housing are concerned, the neighbourhood character has been significantly changed, some would say compromised, by these modern intrusions. As a matter of fact, we consider these stylistic intrusions to be more significant depletions of the original neighbourhood character than the developments now proposed. The current proposal is more suitable, and more complementary, in terms of style, than many of these new intrusions we have mentioned.

15. Nevertheless, it must be appreciated that the area is not subject to any heritage or conservation control or overlay, and there is no proposal or likelihood of any such control being imposed. This means that the now more eclectic stylistic environment created by the late 20th century additions are not inconsistent with the zoning controls or the planned future of the area. Some may regret the intrusions as derogating from the consistency and attractiveness of the previous neighbourhood character, but that has to be accepted in the circumstances. Detached houses, even detached houses which represent substantial overdevelopments and significantly inconsistent intrusions upon the neighbourhood character are not subject to controls under the planning scheme as it stands at present.

16. We are indebted to Mr Bowden for the following summary description of the proposal:-

"It is proposed to demolish the existing developments on the land and to construct 7 two storey dwellings.

Three attached dwellings are to front Lloyd Street, whilst four detached dwellings will front Summerhill Avenue. Typically, the dwellings are to have lounge, kitchen and dining rooms at ground level with bedrooms on the upper floors. All dwellings will have 3 bedrooms. All dwellings will have ground level open space varying in area from 58 square metres for dwellings 5, 6 and 7 to 189.6 square metres for dwelling 1. All dwellings have two car spaces, each in a double garage with the exception of dwelling 7 which has two single garages. Dwelling 4 has vehicular access directly off Lloyd Street, whilst the remaining dwellings have access from the R.O.W. which runs off Lloyd Street.

The proposal also includes provision to increase the width of the rear right of way from 3 metres to 4.3 metres, to improve access.

The proposed dwellings are modern yet retain a very strong 1930's Californian Bungalow feel in terms of overall form, scale and bulk. Materials proposed include a mixture of face and rendered brickwork, terracotta roof tiles, timber joinery and fences. The dwellings have all been designed to read as individual houses from the street."

17. The grounds of refusal are set out above. They represent the two main issues in this case namely the relevance (if any) of the single dwelling covenant on the title and whether the proposed development is inconsistent with the neighbourhood character to such an extent as to warrant refusal. The grounds also refer to the Good Design Guide for Medium Density Housing, claiming that the development does not meet its requirements. We have considered the case in terms of the Good Design Guide generally, as well as in relation to its raising the question of neighbourhood character.

18. The grounds of refusal also makes specific mention of the Responsible Authority's view that the development would be, in fact, an overdevelopment of the site. We have not overlooked this question although it is really also covered by the neighbourhood character and Good Design Guide considerations.

19. We have identified these as the significant issues in the case. They are mentioned, not only in the grounds of refusal but also in the grounds of objection raised by objectors. Objectors grounds of objections were summarised by the Responsible Authority under the following points:-

(i) the proposal will contravene existing single dwelling covenant,

(ii) contrary to neighbourhood character/streetscape,

(xii) vehicle access along right of way off Lloyd Street.

20. Of these points (i), (ii) and (iv) can be seen as covered in the grounds of refusal of the Responsible Authority and the main issues we have identified. While we have directed our attention to the others we find that they have not been pursued or substantiated in the cases presented to us in the course of the hearing or where, as in the allegation of excessive site coverage, there has been some slight passing reference, we nevertheless find them unsubstantiated or too insignificant to warrant refusal or modification of the proposal. We suspect that concern about car entry safety hazards are really an echo from the previous proposal where vehicle entries were different and where there was, at least arguably, a little more ground for concern than with the current proposal.

21. There is no basis, and none has been substantiated, for supposing that any increased traffic or noise would be untoward in the circumstances. Loss of amenity is a very general proposition which, in the circumstances of this case, is really covered by the more specific issues raised and discussed. Reduction in property values is not, in itself, a planning consideration. We are concerned with the amenity affects that might be reflected in reduced property values. This matter was not pursued and we have no evidence that property values would be adversely affected. Having considered it we are not concerned with the site coverage as we do not regard it as excessive. The buildings to be demolished are not covered by conservation or heritage protection and the allegation that they are of historic importance has neither been pursued nor substantiated. The mentions in points (ix) and (xii) of right of way may both relate to the lane on the south side of the site leading off from Lloyd Street. There is no basis for concern about safety or traffic in this laneway which is, by the way, to be widened under the current proposal. The laneway is there to provide vehicle and pedestrian access and it is not untoward that such traffic should use it. If the pedestrian safety in the right of way refers to an alleged pedestrian right of way said to exist across the land, then we agree with the concession made by Mr Pitt that the existence or otherwise of such an easement is not relevant for current planning purposes. It was mentioned merely to reserve the right to argue elsewhere for the existence of such rights. Each proposed dwelling is to be provided with adequate off-street parking and we do not accept that it has been established that visitor or other parking occasioned by the proposal that might use surrounding streets would be either inappropriate or excessive. As we have said, we do not regard these subsidiary matters, that is to say other than what we have identified as the principal issues, as warranting either rejection or modification of this proposal.

Planning Controls and Policies under the Stonnington Planning Scheme.

22. The subject land is zoned Residential C under the Stonnington Planning Scheme. The zone controls for the Residential C Zone are found in Clause 119 of the Planning Scheme. There are no overlay controls affecting the site.

23. A permit is required under Clause 119 to use the land for multiple dwellings or attached houses. Three of the dwellings, that is dwellings 5, 6 and 7, are attached and require permission accordingly. Furthermore, the whole 7 dwellings, even the 4 detached dwellings, still require permission under Clause 119-1.2 because, although detached houses are as of right under Clause 119-1.1, they nevertheless require permission for there to be more than one on a single allotment.

24. It was submitted to us that a permit was also required under Clause 21, but that is a misreading of that provision. Its real effect is to introduce the requirement of consideration of the Good Design Guide in relation to certain sorts of developments (of which this case is one) where planning permission is required under other provisions. Thus planning permission is here required under Clause 119, not Clause 21, although the Good Design Guide is nevertheless a relevant consideration as to whether such permission should be granted.

* To recognise areas of residential development and encourage the establishment of educational, recreational, religious and community facilities compatible with the area and responsive to local community needs;

* To provide the opportunity for a variety of residential densities and dwelling types;

* To encourage higher residential densities in areas near rail transport stations and stops, near centres of commercial and community activity and near areas shown as district centres on the strategic framework plan, having regard to:

- the nature of the area, including the amenity and residential density;

- the capacity of surrounding roads to carry any increase in traffic;

- whether the development will require improvements to the existing roads or essential services.

* To ensure that if land is used for a residential building, dual occupancy or a multi-unit development, adequate provision is made for daylight, privacy and landscaping and that the amenity of occupants of adjoining land is not impaired.

26. A new planning scheme based on the Victorian Planning Provisions is in the course of preparation. However, it is not yet in force. It proposes to include this land in a Residential 1 Zone. No Overlay controls are proposed. In particular no heritage overlay is proposed.

27. The Responsible Authority advised that the Summerhill Estate Residents Association had made a submission to a panel under the PE Act in relation to the new planning scheme. The Association requested that a suitable planning control be imposed to prevent multi-unit development occurring on the Estate. The Independent Panel appointed to consider such submissions recommended that no change be made to the proposed planning controls for the Estate. However, according to Mr Bowden on behalf of the Responsible Authority

"... the Panel concluded that the Summerhill Estate possessed unique characteristics which should be recognised and protected ..."

Mr Pitt, on behalf of the objectors, made a similar claim. However, none of this identifies the supposedly unique characteristics that should be recognised and protected. They have not been identified for us. Indeed we merely have a page reference to some passage from the Panel report which we do not have. In any event we have formed our own views.

28. Mr Bowden further advised that the Residential Development Strategy Study Team is currently in the process of a whole municipality review to identify areas that exhibit unique or special urban character. At this stage, the study team has not formed a view in respect of the Summerhill Estate, nor has Council considered the issue of any additional controls of guidelines for the Estate.

29. In relation to the heritage significance of the estate, the Responsible Authority's heritage consultant has undertaken a preliminary assessment of the Estate and has provided the following comments:-

"While the curve of Fell Crescent is of some interest in countering the predominant grid layout of the area, the former estate as found today does not, in my opinion, warrant further assessment with a view to designation as an urban conservation area under the planning scheme. The building stock is representative of the period and the broader area rather than exceptional, and its integrity has clearly suffered in the past two decades through demolition of original houses and construction of new dwellings. While a very pleasant area, relatively homogeneous in scale and regular subdivide pattern (with the exception of the school and church sites), the area does not present any characteristics which are special or unusual to a degree sufficient to warrant further analysis or an amendment creating an urban conservation area.

Furthermore, I do not believe the church building in Lloyd Street to be a very substantial individual significance. Based on the appearance and the architecture of the building, I suggest that if it were to be graded as part of an urban conservation area, it would not likely be graded B, a contributory building of local significance. No historical significance to date has been associated with the building. On this basis, I do not think it appropriate that the church be considered for protection as an individual building of significance in Council's planning scheme."

30. We agree with the heritage consultant's description and assessment. Having regard to it, and to the attitude taken by the Panel considering the proposed new planning scheme, we conclude that there is no likelihood of heritage overlay controls being imposed on this site or its immediate area.

31. State policy 3-3A and regional policy 14-2 both encourage a diversity of housing and medium density developments in highly serviced areas. Both policies look for consideration of the Good Design Guide to ensure that an appropriate design response and quality development is achieved.

The Good Design Guide for Medium Density Housing (Clause 21).

32. The purpose of Clause 21 is to ensure that medium density housing proposals satisfy the objectives of the Guide. The Clause requires a site analysis and design response to be prepared to demonstrate that the design is site responsive. The Clause also requires the proposed development to be assessed having regard to the objectives, criteria and techniques for each of the eleven elements of the Good Design Guide for Medium Density Housing.

33. Council's Residential Development Code largely supports the objectives of the Good Design Guide for Medium Density Development. The Responsible Authority advised that it should, however, be satisfied that a proposal for multi-dwelling development will maintain and reflect the particular character of an area and protect the amenity of adjoining properties. Particular consideration should be given to scale, density and style.

34. This document was exhibited with the "new format" Stonnington Planning Scheme on 16 October 1997.

35. The Residential Areas Strategy encourages large scale and medium density residential development on arterial roads where a high proportion of flats and units already exist, provided the proposal is consistent with scale and character of the area. Within the municipality's residential precinct, the strategy encourages retention of housing stock and any new development must be consistent with the scale, character and amenity of the area.

36. The proposed "new format" Planning Scheme also introduces a range of Local Policies.

37. Policy G2 deals with the Design of new Development. It sets out the following objectives and guidelines:-

* to retain the existing diversity of building forms;

* to encourage innovation and good design in the building of new buildings;

* to ensure new development makes a positive contribution to the built form and amenity of the area and is respectful to the existing character and streetscape.

Applications for use and development throughout the City should demonstrate that:

* are not significantly higher or lower than the surrounding buildings;

* are orientated to match the alignment of existing buildings in the street;

* setbacks, especially frontage setback, are consistent with those of adjoining buildings;

* parts of the building over 2 storeys and any roof gardens are set back behind the façade to minimise impacts on the streetscape;

* forms and materials used reflect and complement the character of nearby buildings in the street;

* design, height and location of any proposed new front fences, carports, garages and landscaping complement both the building on the site and the streetscape (eg. fences are low, carports and garages are not generally located in the frontage setback).

38. Mr Pitt has sought to persuade us that the existence of the restrictive covenant on the title to the land is a relevant consideration, indeed an important consideration, when we bring our minds to bear on the question of whether the permit sought under Clause 119 of the planning scheme should be granted. There are many considerations that clearly are relevant to that exercised discretion. They include the purposes of the Zone which we have set out above. They also include various policy considerations referred to and matters that the planning scheme or PE Act, either expressly or by implication, indicate to be relevant. None of these things, on our reading, expressly state that a restrictive covenant of the sort applicable here is a relevant consideration for the purposes of deciding whether this permission should be granted under the Residential "C" Zone controls appearing in Clause 119 of the planning scheme.

39. There happens to be a restrictive covenant on the subject land in this case. There is plenty of other Residential "C" Zone land not burdened by such a covenant, either because it has no covenant at all or because it has a covenant that is concerned with other matters. It becomes pertinent then to ask what difference does it make to the exercise of discretion in this case with this covenant as compared with the considerations that would be relevant to the same proposal in the absence of such a covenant. This is a question we posed to Mr Pitt. We will return to it.

40. When embarking upon his task Mr Pitt indicated that he was seeking to persuade us that the approach taken in the case Swinton's Pty Ltd v City of Melbourne and Crediton Nominees Pty Ltd & Ors (unreported Planning Appeal 1993/37829 and 1993/68123) a decision of the Administrative Appeals Tribunal, which immediate predecessor of this Tribunal as the Tribunal for hearing planning appeals. Mr Pitt in fact appeared in that case on behalf of the Respondent Objector Crediton Nominees Pty Ltd. The case was heard and determined by one of us (Mr Byard) sitting with our colleague, Ms Jane Monk. As Mr Pitt sought to persuade us to a different view to that taken in Swinton's case, we have taken particular care to weigh his arguments and to review all the cases he referred to, although we would take considerable care in this regard in any event.

41. The relevant portion of the reasons given in Swinton's case appears under the subheading "Restrictive Covenant" commencing at the bottom of page 8 of the reasons. There follows an extensive passage reaching to page 15. In spite of its length we propose to quote it. That will save us repeating things here. Although some portions might now be expressed in slightly different terms, and although some parts now require a more full exposition, in view of Mr Pitt's arguments, our review of it and of his arguments has left us satisfied that the approach adopted in that case is, after all, correct. We quote commencing at page 9 as follows:-

Since about 1918 the Property Law Act has provided a statutory remedy whereby the cancellation or modification of a restrictive covenant can be achieved. That statutory remedy was in addition to several pre-existing methods of achieving relief although they applied in only quite limited circumstances. The Property Law Act procedure involves an application to the Supreme Court. Over the decades the Supreme Court has taken a fairly strict view, some would even say a fairly narrow view, of the circumstances in which modifications or removal of restrictive covenants will be allowed.

During the last decade the view has been growing in town planning thinking that metropolitan Melbourne has spread over widely onto surrounding country and that policies of urban consolidation should be supported. Along with this, under the previous Labour (sic Labor) governments, went a view that there should be some enhancement of the opportunities to modify or remove covenants. Two new statutory procedures were introduced. The first to come into effective operation was a procedure whereby a restrictive covenant could be altered or removed by means of a planning scheme amendment. The second was an arrangement whereby such changes could be achieved by obtaining a permit pursuant to the provisions made for obtaining planning permits.

Prior to the introduction of these procedures, the traditional view had been that the existence of restrictive covenants and the possibility of removing them were matters outside the purview of town planning. The restrictions imposed by covenants had been used for decades to control the use and development of lands to achieve amenity advantages, long before public town and country planning as we know it today came into existence. Although sometimes referred to as "private planning", such arrangements had their basis in private contractual agreements and not in any system of "public planning" imposed by planning legislation in the public interest. The practice of imposing such covenants on titles has continued after the introduction and development of "public planning" and, indeed, continues today. As we have said, the traditional view had been that restrictive covenants might be legal restraints, but they were not regarded as part of town and country planning. When an application was made for a permit, or an appeal in relation to such an application was made, arguments were sometimes raised that the planning permission sought should be refused because of the existence of a restrictive covenant that might bar the proposal. The view was repeatedly taken that the existence of such a covenant was irrelevant to the consideration of whether such planning permission should be granted. Rather applications should be determined on their merits, having regard to the appropriate planning considerations applicable in the particular case, with a permit being then granted or refused on the basis of those considerations.

The existence of a restrictive covenant was not regarded as a bar to the granting of a permit. Such a permit should be granted, where appropriate. The covenant, whilst it remained in force, might very well bar the permit holder from acting on the permit, but that was a different restraint under different laws from the planning legislation. The permit holder could seek to remove the covenant under the Property Law Act or otherwise. If successful the project could proceed, if not it would remain barred by the covenant. The covenant could be enforced in civil proceedings by those enjoying its benefit. The merits of whether the restrictive covenant should be removed would be considered under the law applicable to the mode of removal adopted, not under the town planning provisions. If such relief was sought by an application to the Supreme Court under the Property Law Act, then it would be considered by that Court in accordance with the Property Law Act provisions, not by the planning responsible authority or the Planning Appeals Tribunal and not with reference to planning considerations.

The situation was analogous to that where more than one permission, licence or consent was needed for a project. Planning matters would be considered under the planning permit application and other consents, licences, etc. would be considered by the relevant authorities under the provisions relevant to the laws requiring them. The proposal could only proceed if and when all relevant permits consents, approvals, etc. were obtained. One might be granted on its merits under one set of laws whilst another refused under others. That simply meant that the second set of laws barred the proposal. It would be confusing and inappropriate to refuse the first permit on the basis of considerations that only apply to the second.

We agree with that approach, whether or not one of the obstacles to be removed was a restrictive covenant. This approach worked logically and well for many years. It gave rise to what Mr Pitt referred to as "the former dichotomy that existed between town planning and restrictive covenants".

With the advent of the new statutory procedures for removing restrictive covenants by planning scheme amendment or by permit, these distinctions became somewhat blurred, at least in some minds. The planning procedures of planning scheme amendment and permit were adopted as convenient procedures allowing for consideration and adjudication upon applications to remove or modify covenants. Although procedurally convenient, this arrangement was and is conceptually anomalous. Restrictive covenants are, as they always have been, private arrangements based on contract. The planning procedures were adopted as a machinery for dealing with applications that are not essentially part of the public planning laws. This can be seen when it is remembered that the procedures have been borrowed, not to grant relief from restraints imposed by planning schemes that are part of the public planning legislation, but to remove or modify restraints that are imposed by contracts on land transfers and certificates of title which are certainly not part of the public legislation.

After they were instituted, these new quasi planning procedures came to be used, first by planning scheme amendments and then by permit applications and appeals. It should be noted that such planning scheme "amendments" were not changes to the existing provisions in planning schemes but were "add ons" to the extent that certain restrictive covenants on certain titles were deleted or modified in certain ways, although such covenants were at best "private planning" constraints that had never existed in the planning scheme. Likewise, a permit could be granted to remove or vary a restraint that did not exist in the planning scheme, but which existed by way of restrictive covenant outside the planning scheme and the planning laws. Clause 7-1.5 had to be added to the State Section of the Planning Schemes to more or less artificially create a discretion in the planning scheme under which a permit could be sought. That did not really change the situation. Relief was not being sought from a planning scheme restriction under the planning laws, but from another type of restriction imposed under other laws.

This Tribunal came to consider appeals arising from applications seeking covenant removal or modification. Frequently these applications were made in relation to proposals that also required planning permission in the original sense, that is arising from discretions in planning schemes. It soon became apparent that it was convenient to deal with both sorts of applications together. Indeed, it was often difficult to deal with a restrictive covenant application in the absence of a clear view of what was being proposed for the land concerned. An applicant had a much better chance of obtaining a limited modification to a restrictive covenant than of getting a complete removal opening up a much wider and less certain scope.

It was this situation that led Mr Pitt to refer to the "former" dichotomy between planning and restrictive covenant and also to some, perhaps rather loose, references to the scope of planning having been expanded to include restrictive covenants or to restrictive covenants having become planning matters or planning considerations.

We think that it has remained important to maintain the conceptual distinction between public town planning and restrictions and discretions provided for in its instruments on the one hand and the restrictions imposed by restrictive covenants and private contracts on the other. The scope of "public planning" was never really widened in any meaningful sense.

The importance of the maintenance of that conceptual difference has been well illustrated by amendments to the Planning and Environment Act in relation to restrictive covenants that came into operation in December 1993. These amendments (see s.60(2) to (7) as they now stand) have not completely removed the permit procedures as a means of achieving a covenant removal or amendment. However, they have strengthened the partial bar that had existed in the original s.60(2) to such an extent that the procedure is now effectively useless to applicants, except where there is no dispute at all about the proposal. The permit procedure is no longer an effective means of determining a dispute about the merits of a proposed covenant removal or modification. It has been reduced to a machinery for recording covenant alterations about which there is no dispute.

The "add on" of restrictive covenant alterations to the planning procedures has always been somewhat anomalous in concept, however convenient or effective it might have been in practice. Now it has been rendered ineffective for all but what are effectively consent proposals. We are left with the anomalous appendage but without the remedy it was intended to serve.

We have now effectively reverted to the original situation sofar as the relevance of restrictive covenants to planning appeals is concerned. It is appropriate to deal with planning permit applications on their planning merits, leaving restrictive covenants and their possible removal or modification, to be considered by the authorities that have retained an effective means of dealing with them, if and when the necessary applications are made. Such applications can still go to the Supreme Court to be dealt with under the Property Law Act or to the relevant planning authority and the Minister for Planning if the planning scheme amendment route is favoured. The planning responsible authorities concerned with planning permissions (as opposed to planning authorities concerned with planning scheme amendments) and the Tribunal have effectively lost the jurisdiction to deal with contentious proposals in relation to restrictive covenants. Mr Pitt's so called "former dichotomy" between planning and restrictive covenants has been demonstrably revived, although we would say never died and was merely obscured (for some).

Given the emasculating changes of December 1993, it is not surprising that people seeking covenant changes have been abandoning the permit method as useless and have instead been looking to planning scheme amendment or the older methods like that under the Property Law Act. Some applications for permits were commenced before the December 1993 amendments and have been overtaken by them. Mr Pitt referred in argument to Upton v Marrone & Ors 12 AATR 18 where an appellant abandoned an appeal that had been rendered useless by the amendments. The appellant in this present case has sought to do the same thing for the same reason. He gave notice before the hearing that it did not wish to pursue Appeal 1993/68123. The preliminary matter referred to earlier was an indication by Mr Wright that his client did not wish to pursue that appeal before us, but wished to withdraw it or have it struck out. That was on the basis that the December 1993 amendments had rendered the appeal redundant and, indeed, futile. The amendments had imposed new obligations on the Appellant to show that the Objectors' objections to the proposed modification of the restrictive covenant were vexatious or not made in good faith. Mr Wright conceded at once that he could not show these things, though he maintained that the Appellant had a good case on the merits for modification, a case that it would now pursue in another place by other means. He gave notice that his client intended to do that, presumably provided that it was successful in the remaining appeal before us.

Representatives of the Objectors opposed the Appellant being allowed to withdraw the appeal. Reference is made to the case of Mt Buller Hotel (Kooroora) Pty Ltd v Alpine Resorts Commission 11 AATR 254 where one of us (Mr Byard) considered whether there was a right to withdraw an appeal, or whether leave was required.

Mr Callander argued that a decision by us to support the proposal, which decision would be made on planning considerations as normally understood, would be relied on by the Appellant to support an application to the planning authority and the Minister for a planning scheme amendment to remove the covenant, or perhaps to the Supreme Court. As to this, we trust and assume that those authorities would deal with any such proposal on its merits, that is to say the merits of the issues relevant to such applications. It would be a sad situation if we felt constrained from making a proper decision on a planning permit application because of fear that those responsible for planning scheme amendments or property law applications might be unduly influenced by what we decided on a different matter guided by different considerations. Insofar as our discretion might be relevant at all, why should we shy away from making such a decision if someone may derive an appropriate benefit from it?

It was suggested that we should refuse leave to the Appellant to withdraw its covenant appeal, if such leave is necessary, and to force it to go on with what it itself concedes to be a hopeless cause in view of the December 1993 amendments. It is conceded that this would be a futile exercise. The only result could be the disallowance of the appeal, effectively without a determination of its merits. Why do the Objectors seek that? Could it be with a view to trying to rely on it in any future attempts to remove the covenant by planning scheme amendment or Supreme Court proceedings? As such a dismissal by us would not effectively be on the merits, it would not be appropriate as a consideration of such future proceedings. At best it would only cause confusion or divert attention away from consideration of the appropriate matters. We have no qualms about denying opponents of this proposal that tactical counter by granting any necessary leave to withdraw the covenant appeal.

Mr Callander's prognostications about this creating a precedent that would lead to the removal of covenants from all properties to the north and their redevelopment to similar densities, is far fetched, to put it nicely. We will content ourselves again with the hope that future proposals will be dealt with on their merits when they arise without being inappropriately favoured or prejudiced by anything we now decide. We only purport to decide what is now before us. In doing that as best we may, we decline to take on additional responsibility in relation to other hypothetical future applications.

Insofar as it might be necessary to grant leave to withdraw Appeal 1993/68123, we, as we said during the hearing, grant it. Whatever considerations might conceivably apply in some cases for refusing such leave, we cannot conceive of them having valid application here. The Applicant can pursue its modification, as best it may, elsewhere. We decline to compel it to proceed with this appeal that it no longer wishes to maintain and which it concedes is no longer viable.

We will consider the remaining appeal on its planning merits. In doing so we will consider the amenity of the area and the lands within the area as we find that amenity, whether it has come about or been maintained by chance, by the current or past planning scheme controls, by restrictive covenants or by some combination of these and other factors. In terms of the Pitt dichotomy, former and current, we disregard the existence of the restrictive covenant as a planning consideration in determining whether the planning permissions sought in the remaining appeal should be granted."

42. Restrictive covenants created by contract were used for many decades prior to the creation of modern statutory urban and regional planning in its present form. They have continued to be created, in some cases, since then. They are created by private contracts usually between vendor and purchaser for the sale of land. The sort of restrictive covenant we are concerned with here involves provisions to bind successors in title. In those circumstances a notation drawing attention to the existence of the covenant can be endorsed as an encumbrance on the relevant certificate of title. That gives notice of the existence of the restriction to subsequent purchasers and others contemplating dealings in relation to the land.

43. Restrictive covenants can impose various types of restrictions. They are, by no means, limited to "single dwelling covenants". Some covenants deal with matters that are commonly also within the concerns of town planning and town planning schemes, but others need not be.

44. Arising initially from private bargains, they reflect the interests and desires of the privately bargaining parties. The motivation is a private interest rather than the public interest. Of course private interests and desires can coincide with the public interests, but that is not necessarily the case.

45. Town and regional planning legislation is public legislation imposed in what Parliament has perceived to be the public interest. Such legislation, including subordinate legislation like planning schemes, exists to achieve the public interest in the proper and orderly planning of the use and development of land. Such legislation imposes various limitations on the use and development of land.

46. What is perceived to be in the public interest, so far as planning is concerned, may vary from place to place and time to time. New policies may evolve or be created to deal with perceived problems or new situations. The policies and purposes of planning in relation to a particular situation may be implicit in the controls that the legislation imposes, or may be spelt out in writing in the legislation or elsewhere. Although there has been a good deal of talk lately about new policy driven planning, as opposed to supposedly old prescriptive restrictions, the basis of the justification for all statutory planning has always been the achievement of planning policies in the public interest. If some people thought that past statutory planning and planning restrictions were merely the imposition of rules and restrictions for their own sake, then they failed to understand what the whole thing was about.

47. Planning legislation is public legislation made in accordance with procedures for making public laws. The makers of such laws are publicly and politically accountable for them. There is no equivalent to this public accountability in relation to private contracts or their restrictive covenants.

48. The planning legislation provides various statutory remedies and sanctions in relation to achieving its requirements. There are various proceedings, of a public nature, that are available to enforce planning requirements, to achieve compliance and punish contraventions. These include enforcement order applications, prosecutions and applications for injunctions.

49. Although the private desires and purposes that lead to the creation of restrictive covenants may, in some cases, be quite consistent with the policies and purposes that planning seeks to achieve in the public interest, in other cases they may be in dire conflict.

50. In such a situation enforcement proceedings, prosecutions and the like are there to enforce the public planning requirements rather than the private contractual ones. They are not there for the purpose of enforcing private bargains. There are other private litigation remedies available to those who are aggrieved by alleged failures to comply with the restrictions imposed by restrictive covenants. They are powerful remedies. Notably, private actions for injunctions are available. Prosecutions are not available, and neither are enforcement orders.

51. We are not impressed with the suggestion that planning and its enforcement provisions should be used to enforce private bargains which have imposed restrictions in relation to which the public interest has had no say and has not been consulted, particularly as such restrictions can, in some cases, be opposed to public planning policies.

52. The quotation from Swinton's case includes mention of the reference Mr Pitt made in that case to a dichotomy, in his view now an obsolete dichotomy, between planning and restrictive covenants. It has become relevant to look more closely at the relationship between these two phenomena.

53. Reference is commonly made to a distinction between things that "planning matters", and considerations and matters that are not planning ones. These expressions are easily tossed around in discussion without much clarity as to what they mean and what contra distinctions are involved. Nevertheless the distinction between what is and what is not a planning matter is a meaningful one.

54. One of the context in which it arises is in relation to the validity of planning permit conditions. In the Victorian Supreme Court decision of 271 William Street Pty Ltd v City of Melbourne [1975] VicRp 15; 1975 VR 156 there is reference, in the context of testing the validity of permit conditions, to whether a condition under consideration is "reasonably capable of being related to the implementation of planning policy". The judgement goes on to observe that such policy is to be derived from the planning Act and the relevant planning scheme, not from some preconceived notion of planning. A discussion of that and other cases relevant to this topic is found in Rosemeier v Greater Geelong CC (No. 1) [1997] 20 AATR 86 commencing at paragraph 67 on page 102. At paragraph 76 on page 105 of the Rosemeier reasons reference is made to s. 9(2) and the Third Schedule of the Town and Country Planning Act 1961 (TCP Act). The TCP Act was the planning Act before it was replaced by the current PE Act on 16 February 1998. The Third Schedule of that Act prescribed the various things that a planning scheme could control. It thus served as a useful reference for determining what was, and was not, within the scope of planning.

55. With the introduction of the PE Act the old Third Schedule ceased. After that attention, of course, focused on the new Act. Section 6 of the new PE Act is the equivalent of s. 9(2) and the Third Schedule of the TCPA. Thus attention can be directed to Section 6 and the new Act generally to determine the present scope of planning. It may be that the boundaries are not always as clearly defined now as they were with the old Third Schedule.

56. The Third Schedule did not refer to restrictive covenants. Initially that was also true of the PE Act and its Section 6. That situation justified talk of a continuing dichotomy between planning and restrictive covenants. It was clear that restrictive covenants were outside the scope of planning concerns.

57. Just because that was the situation before and after the 16 February 1988, it does not follow that it would necessarily remain the position for all time. In terms of 271 Williams Street the scope of what is planning policy is to be derived, not from preconceived notions of what planning is, but from the controls of the planning Act and the relevant planning scheme. As the provisions of the planning scheme depend for their validity on their being authorised by the Act, ultimately the scope of planning is limited by what the Act says, and by what it allows planning schemes to provide for. If the Act changes in this respect, then the boundaries of what is planning will move accordingly. If the Act is amended to allow planning schemes to prohibit or regulate say, the illumination of domestic tennis courts, then that will bring the illumination of domestic tennis courts within the purview of planning, though it never had been up to that time.

58. Similarly, if the Act is amended to allow planning schemes to prohibit or regulate the creation of restrictive covenants, then that too would become a planning matter.

59. In fact amendments have been made to Section 6. It prescribes certain matters that planning schemes must provide for and others that they may provide for. Section 6(2)(g) now provides that a planning scheme may:-

"(g) subject to section 6A regulate or provide for the creation, variation or removal of easements or restrictions under section 23 of the Subdivision Act 1988;"

60. A "restriction" under the Subdivision Act 1988 (SD Act), means a restrictive covenant, see s.3(1) of that Act. It has the same meaning under paragraph (g) of s. 6(2), and also 6A PE Act, see s. 6A(1).

61. This makes it look as if restrictive covenants, at least in some respects, have come within the scope of planning. The scope of these respects is limited by s.23 SD Act and s.6A PE Act.

62. Section 6A(2) PE Act provides, amongst other things, that a planning scheme may require a permit to be obtained before a person proceeds under s.23 SD Act.

63. Section 23(1) SD Act as now amended reads rather oddly. It is in the following terms:-

"23. What if a planning scheme directs the creation, removal or variation of rights?

(1) If a planning scheme or permit regulates or authorises the creation, removal or variation of ... (a) restriction, the owner of the land burdened or to be burdened by the ... restriction must, in accordance with the planning scheme or permit and with the Planning and Environment Act 1987, lodge a certified plan at the Office of Titles for registration."

64. We say that this is oddly worded because its terms seem to cast a duty and requirement on the owner of land burdened with a restriction to lodge a certified plan at the Office of Titles for registration merely if the planning scheme regulates or authorises the creation, removal or variation of a restriction, whether the owner wants such changes or not, see the use of the word "must". This seems absurd. Surely the effect must be that the owner is only required to lodge a certified plan if it is sought to create, removal or vary a restriction and where such a step is regulated or authorised by the planning scheme.

65. At any event, s. 6A(2) PE Act provides that a planning scheme may require a permit to be obtained before a person proceeds under s.23 SD Act, to create, removal or vary a restriction.

66. If this power under s.6A(2) PE Act to require a permit in those circumstances has been utilised in relation to a particular planning scheme, then it would appear that the initial requirement of s.23(1) would be satisfied. By requiring such a permit in those circumstances the planning scheme might be said to regulate the creation, removal or variation of a restriction. This regulation is achieved by the requirement of a permit as a condition precedent to proceedings under s.23 whereby such creation, variation or removal is to be achieved.

67. Before leaving s.6A PE Act, we note that sub-section (3) imposes certain restrictions on what a planning scheme may provide for in this respect. A planning scheme cannot prohibit or regulate the creation, variation or removal of a restriction by agreement (which would mean or include by a contract) or by the operation of various aspects of existing law.

68. The power to require a planning permit before proceeding under s.23 SD Act has been exercised, so far as the Stonnington Planning Scheme is concerned. Clause 7-1.5(a) of the State Section thereof provides that a permit is required before a person proceeds under s.23 SD Act to create or remove or vary a restriction.

69. As a result of all this it can be said that the creation, removal or variation of a restrictive covenant can now be regarded as a planning matter, at least in some circumstances.

70. We say can be a planning matter because it is quite possible to proceed in relation to the creation, removal or variation of a restrictive covenant quite apart from, and without reference to s.6(2)(g), 6A(2) PE Act, s.23 SD Act or Clause 7-1.5 of the planning scheme. Indeed, it will be recalled that s.6A(3) specifically preserves such methods.

71. To spell out this saving more specifically, s.6A(3)(a)(i) provides that a planning scheme must not (cannot) restrict or prohibit the creation, variation or removal of a restrictive covenant by agreement, prescription, abandonment or otherwise by the operation of law. This is not the occasion for a discussion of the ways by which common law recognises circumstances where alterations to restrictions could be affected, but common ownership of the dominant and servient land will extinguish such a restriction. Furthermore, s.6A(3)(a)(ii) provides that a planning scheme cannot prohibit or restrict the creation, variation or removal of a restrictive covenant by or under an Act other than SD Act. This clearly preserves s.84 of the Property Law Act 1958 (PL Act) as a means of removing or modifying a restrictive covenant. Such an alteration by that means is clearly not a planning matter. It is beyond the scope of planning under the PE Act as it now stands. So are the other means of alteration preserved by s.6A(3)(a)(i) PE Act.

72. It is important to remember that nobody, in this present case, is seeking to do anything by way of proceeding under s.23 SD Act. Furthermore, nobody can compel anyone to do so. The present permit applicant is under no obligation to do so, and has not sought or commenced to do any such thing. The present applicant is perfectly entitled to proceed in any way open to it to remove or vary the present covenant. It can do so before or after or without obtaining the permit that is now being sought under Clause 119 of the planning scheme. If it takes up such an option it will not be invoking the planning laws or raising a planning matter.

73. There are presently at least two legal obstacles to the Applicant proceeding with its proposed development. One is the restrictive covenant and one is the lack of the necessary planning permit under Clause 119 of the planning scheme. If the currently sought permit obtained, that will remove one of those obstacles, but it will leave the other in place. If the Applicant wishes to proceed lawfully it will have to do something about the second obstacle.

74. If the Applicant proceeds with the proposed development whilst the restrictive covenant in its present form remains in place it will be open to those owning land with the benefit of the covenant to proceed in court to seek an injunction to restrain such actions. However, such things are quite apart from planning (as discerned on the basis of the PE Act as it now stands) and are none of our business.

75. We have mentioned that debate sometimes arises as to what is and what is not a planning matter or planning consideration. Apart from the question of the validity of planning permit conditions this question can arise in other ways. One is in relation to what is a relevant matter to the consideration of whether a planning permit should be granted in particular circumstances. (This present case is an example of that). To chose an extreme example, if someone objected to the grant of a permit to establish a stamp dealers shop in Collins Street on the basis that the objector believed the stamp collecting to be morally wrong based on the teachings of some wise and ancient sage, that matter could be excluded from consideration on the basis that such a personal moral conviction, however sincerely held, is not a planning matter. It is not a matter which, by reference to the PE Act, can be said to come within the scope of planning as envisaged by that Act. The same would be true of moral objections to prostitution, gaming or the consumption of alcohol. Many other objections are raised, from time to time, that are outside the scope of planning and disregarded for that reason. Establishing that an objection is beyond the scope of planning and thus not a "planning matter" or a "planning consideration", can be a quick and convenient way of disposing of an irrelevancy. If it is not a planning matter it cannot be relevant.

76. However, it does not follow that a matter within the scope of planning generally will necessarily be relevant consideration of each and every planning permit application. For instance, loss of privacy by overlooking might be an important and relevant consideration in an application for a permit for attached multiple dwellings. However, that consideration would be irrelevant in relation to determining whether a permit should be granted for a particular outdoor advertising sign, or for a permit for the illumination of a domestic tennis court. Loss of domestic privacy by overlooking is a planning consideration in the sense that it is within the whole scope of what planning is concerned with, but that does not make it relevant in every particular planning application. This would seem obvious enough, although cases have been fought over the proposition.

77. What we say in this respect is gathered together in a recent interim ruling (by Mr Byard) in McDonald's Properties (Australia) Pty Ltd v Moreland, O'Kane & Ors 1998/81008 reported (but on floppy disk and not on paper) at [1999] 2 VPA, Part 2, page xiv. The issue in that case concerned conservation of a residential building that would be demolished if the proposal was to proceed. There was no conservation or heritage control in the planning scheme to prevent or regulate such demolition, and a proposal for the introduction of such a control had been rejected. Paragraphs 16-18 commencing at page xvii, are as follows:-

"16. Mr Wright contends, and seeks a ruling that the question of the demolition of No. 1 Sussex Street is irrelevant to the determination of the current review. It would be otherwise if that land or building were subject to a building (sic planning) control over demolition but there is no such control in this case. He admits that there is power under the PE Act for a planning scheme to include such a control but the power has not been exercised in relation to this land or building. In support of his contentions he cites McIntosh v Hooker Home Units (No. 2) Pty Ltd_, a decision of Dunn J. in the Supreme Court of Victoria (1974) 38 LGRA 188 and the decision of the Full Court of the Supreme Court of Victoria in_ National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VicRp 60; 1976 VR 592.

17. It is true that these cases were decided prior to the coming into operation of the PE Act, and during the reign of its predecessor namely the Town and Country Planning Act 1961 (TCP Act). It is true that Section 9 and the Third Schedule of that Act, which determined what matters could be controlled in planning schemes or interim development orders, are in different terms to the equivalent provisions in the present legislation, notably Section 6 PE Act. These differences in wording probably do have some differences in effect, particularly when it comes to determining whether a particular planning scheme provision is ultra vires (that is to say invalid as being beyond the power granted by the Act for the making of planning schemes). Nevertheless I am not persuaded that this circumstance undermines the validity of Mr Wright's contention or the relevance of the authorities he has cited in support of it, being that a planning discretion must be exercised only for the purpose for which it is conferred. For example, in the National Trust case it was held that a provision in the planning scheme granting discretion for the purpose of controlling the height of buildings could not be used for the purpose of the conservation of an historic building or the regulation of the orderly planning of the area or the amenity of the neighbourhood other than with regard to the height of the building because such purposes, however laudable, are outside the purpose for which the power was conferred. The Responsible Authority, or for that matter the Tribunal on appeal or review, cannot properly have regard to them even if, in another context, they would be perfectly legitimate planning considerations. Even the interim development order applicable in the National Trust case which conferred a general (so called "blanket") control over use and development of land in the area, could not be used for conserving a building of architectural or historic interest where the power to impose control for that purpose had not been implemented. As the Full Court said at page 606:-

"But the use of that discretion [namely of controlling the height of buildings in a specified area in the vicinity of the Shrine of Remembrance to protect views of the Shrine] for the purpose of endeavouring to ensure the conservation of an historic building and to regulate the orderly and proper planning of the area in which it is situated and the amenity of the neighbourhood, in other respects than with regard to the height of the building, is to endeavour to achieve ends outside the purpose for which the power is conferred and to intrude into the exercise of the discretion matters which are extraneous to it. The responsible authority could not properly refuse the permit under the Planning Scheme on such considerations and could not properly have regard to them in determining whether to grant a permit or not."

This is a perfectly proper and logical approach, and one which should be followed even if there was not such high authority in support of it. Indeed, it is followed day in and day out by this Tribunal, as it was by its predecessors, both before and after the advent of the PE Act.

18. I think Mr Wright was correct when he said that the heritage issue is only concerned with the demolition of the building on 1 Sussex Street. That issue is an irrelevant one, having regard to the particular discretion to be exercised in relation to the particular planning permissions to be determined in this case."

78. Both the McDonald's case and the National Trust case are illustrations, and the National Trust case is authority, for saying that a consideration, even something that is clearly a planning consideration, can only be taken into account on a particular application if it is relevant to the permission being sought. The maintenance of a single dwelling restrictive covenant is not such a matter in relation to an application under Clause 119.

79. We think that it is relevant to consider whether a proposal would be detrimental to the achievement of planning policies and purposes, even if a particular proposal itself is acceptable as to the matters specified for consideration in relation to the discretion under which permissions is required. It would be relevant to the consideration of an application under a provision like Clause 119 if the proposal was objectionable in relation to another control or policy in the planning scheme such as, for example, the preservation of shrine vistas where an overlay control to achieve that is in place. However, that does not include the maintenance of an existing restrictive covenant in the circumstances of this present case.

80. It will be recalled that in Swinton's there was reference to the convenience found to exist before the 1993 amendments to s.60 PE Act of considering an application for a permit under Clause 7-1.5 (to proceed to remove or modify a covenant) together with any other necessary application for development permission. This matter of convenience had more force before 1993 because until then the permit application under Clause 7-1.5 was a more viable means of securing covenant removal or modification. In Swinton's there is mention of the 1993 amendment having made the planning permit means of amending or removing a covenant effective only in consent cases. The extent which this is true has since been further explored in subsequent Tribunal cases, particularly Wilde v City of Moonee Valley, McKay & Ors, [1996] 18 AATR 145, Grisby & Sansom v Greater Geelong CC & Ors [1997] 21 AATR 11, Carabott v Hume CC & Scuderi [1998] 22 AATR 261 and Carson Simpson Pty Ltd v Maroondah CC, Kelly & Ors [1998] 1 VPA 132. Whatever fine tunning and clarification those cases may have achieved, it remains true that it is very difficult to achieve modification or removal of a covenant by the planning permit route where there is any opposition. It is only in exceptional cases that an applicant can hope to succeed.

81. The convenience, in the pre 1993 situation, was that it was of assistance in relation to the covenant permit to know what development is being proposed. It soon became common, in such cases, to grant a modification of the covenant to allow the particular development, rather than a complete removal of the covenant. It was probably easier for an applicant to persuade a Responsible Authority or a Tribunal to grant such more confined relief, rather than the total removal of the covenant. At any event, it was a convenience in relation to the application for permission under Clause 7-1.5 rather than in relation to the other permission that might have been involved (except to the extent that one hearing rather than two represents the saving of time, trouble and expense). So far as the consideration of the other permission was concerned (like the one here required under Clause 119), its consideration was not affected, in terms of what was relevant to it, by the coincident consideration of an application under Clause 7-1.5. The Clause 119 permission, or its equivalent in a particular case, was governed by the considerations relevant to its self, and those considerations did not vary whether or not the matter was considered with a Clause 7-1.5 application, or, indeed, whether or not the land happened to be subject to a restrictive covenant at all. The same applies, in our opinion, down to the present.

82. This brings us back to the question posed to Mr Pitt in the course of the hearing which we mentioned back in paragraph 39. Mr Pitt said that the presence of the covenant had to be taken into account as a relevant matter in considering whether the permit sought under Clause 119 should be granted. He was asked to specify what additional relevant considerations arose because of the covenant that would not call for consideration if the same application was to be decided in the absence of such a covenant. He said that there were two considerations that became relevant, but which would not otherwise be relevant. He said they were:-

83. We can appreciate that in cases decided under s. 84 PL Act the court has recognised that the limitation of the density of dwellings and of population are purposes sought to be achieved by covenants of this sort. However, we are unable to agree that these become relevant to this application under Clause 119 by virtue of the existence of the covenant. If they are relevant at all, they are relevant because they relate to Clause 119, and as such they are equally relevant whether or not there is a covenant in place.

84. In fact the density of dwellings can be argued to be a relevant consideration, but that is on the basis of the planning policies and purposes, including the Good Design Guide, without reference to the covenant. Policies of urban consolidation and the provision of a variety of housing options may tend to favour increased density. However, such considerations may have to be balanced against other considerations of amenity and preservation of neighbourhood character that might require limitations on density of developments. The assessment of such countervailing considerations is a common requirement in relation to the making of planning decisions. We have been called upon to make such assessments in this case. However, we have done so having regard to the considerations relevant to Clause 119, unaffected by the presence or absence of the covenant. We are satisfied that this is the correct approach. We are not satisfied that Mr Pitt has been able to point to any considerations relevant to our decision under Clause 119 that have been made relevant because of the presence of the covenant. What is relevant and what is not has been unaffected by that circumstance. In short, we reject the suggestion that the presence of the covenant is relevant to our consideration of the grant of the permit sought under Clause 119.

85. Mr Bowden dealt with the restrictive covenant on behalf of the Responsible Authority at paragraph 6.6 on page 14 of his written submissions. He said:-

"In relation to the redevelopment of the subject site with multi-units, Council has consistently resolved that the proposed use is inconsistent with the restrictive covenant as contained in Instrument of Transfer No. 839142 referred to in the Certificate of Title to the subject land and therefore it is inappropriate to approve a development proposal in isolation of the Restrictive Covenant.

Whilst Council acknowledges that the removal or variation to a title restriction can be undertaken by various procedures, eg. Planning permit application, planning scheme amendment or Supreme Court action, it nonetheless considers it inappropriate to support a development proposal contrary to a restriction when clearly the beneficiaries of the restriction are opposed to its removal or variation. In Council's view the development proposal and the issue of the restrictive covenant should be determined concurrently, especially in this instance where the existing covenants limit development on each title within the Summerhill Estate to a single dwelling and to date the restriction has not been breached with the exception of the Church/Hall on the subject land.

Furthermore, Council considers that the breaching of the Covenant in this case cannot be justified as the area remains an intact single dwelling area with no impediments to prevent the redevelopment of the land in accordance with the Covenant."

86. In deciding that it was inappropriate to approve the development, or "support a development proposal contrary to a restriction when clearly the beneficiaries of the restriction are opposed with its removal or variation" the Responsible Authority took into account an irrelevant matter. Insofar as it was suggested that this is the Council's practice in such cases, it should abandon that practice. The Responsible Authority's purported view that the development proposal and the issue of the restrictive covenant should be determined concurrently is not sustainable. The law affords the applicant a right to seek any necessary removal of or changes to the restrictive covenant by other means than a permit application. The Responsible Authority is not justified in seeking to prevent the Applicant from exercising such rights as the law affords it. It has a duty to determine an application made under Clause 119 on its merits, and no right to refrain from doing so because it may prefer the applicant to pursue an unviable means of altering the covenant, rather than an alternative means which the applicant considers may have a better chance of success. Furthermore, the granting of a justified permit under Clause 119, if one is justified, does not amount to breaching the covenant by the Responsible Authority or the Applicant. It might be a breach to act on the permit without obtaining the removal or modification of the covenant, but there is no suggestion that this will be done. If it is, there are appropriate remedies.

87. We have given our conclusion and our reasons in relation to the restrictive covenant issue. However, there were some arguments advanced by Mr Pitt in support of his contention and we should say something more as to why they have not been accepted.

88. At paragraph 1.3.2.8 of his submissions he referred to s.84B(1) PE Act. That subsection refers to the number of matters that the Tribunal is to take account of or have regard to in determining an application for review. Mr Pitt has selected out s.84B(1)(b) which says that the Tribunal must have regard to the objectives of planning in Victoria. This is one of 11 paragraphs in subsection 84B(1). We note that the first provides that the Tribunal must take into account any relevant planning scheme. We have, of course, done that.

89. The objectives of planning in Victoria appear in s.4 PE Act. Section 4(1) contains the objectives of planning in Victoria and s.4(2) contains the objectives of the planning framework established under the Act. There is quite a list under each of these subsections. So far as the objectives of planning in Victoria are concerned, they are important general propositions. Again Mr Pitt has been selective in picking out one of the objectives namely the first. In fact he has been very selective indeed by effectively picking out one phrase from that first of seven paragraphs. The first objective reads:-

"(a) To provide for the fair, orderly, economic and sustainable use, and development of land;".

90. We will examine Mr Pitt's argument based on this shortly. Before doing so however we wish to say something about what we take to be the proper approach to the interpretation and application of s.84B(1)(b) whereby Mr Pitt led us to this objective.

91. This question arose in the McDonald's Properties (Australia) Pty Ltd v Moreland City Council & O'Kane case referred to above. Indeed it is dealt with in paragraphs 19-22 appearing immediately after the quotation we have already taken from that case.

92. Paragraph 19 commences on page xviii of the report. The passage reads as follows:-

"19. Mr Testro sought to argue that the heritage issue is relevant having regard to s.84B(1)(b) PE Act read in conjunction with s.4(1)(d) of that Act. The first of these provisions provides that, in determining an application for review the Tribunal must have regard to the objectives of planning in Victoria. The objectives of planning in Victoria are set out in s.4(1) and the one relied upon by Mr Testro reads:-

"(d) to conserve and enhance those buildings, areas or places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;".

20. The objectives of planning enumerated in s.4(1) have more uses than the reference to them in s.84B(1)(b). For instance, s.6, which deals with what planning schemes may provide for, is very much to the point. Section 6(1)(a) says that a planning scheme must seek to further the objectives of planning in Victoria and may make any provision which relates to the use, development, protection or conservation of land. The objectives of planing in Victoria are therefore relevant to the making of planning schemes and to the provisions that planning schemes are to contain.

21. Section 84B(1)(b) says that the Tribunal must have "regard" to the objectives of planning in Victoria. The primary meaning of regard relates to looking upon although it also means to take into account, consider, look at, observe, pay attention to, to look or gaze upon and so on. To have regard to the objectives of planning means that they are to be looked at, considered and taken into account. This is not [to] say that any particular objective will turn out to be relevant in a particular case. For example, to take an instance that I put to Mr Testro in argument, one of the objectives is to provide for the protection of genetic diversity, see s.4(1)(b). That would not be relevant to a question of whether a discretion should be exercised and permission granted to allow a building to exceed a certain height in the vicinity of the Shrine of Remembrance, just as it would not be relevant to the question of whether McDonalds should have permission to use this land for a Café and take-away food premises. Section 84B(1)(b) demands no more than reference to the objective to see whether it is relevant.

22. The same is true in relation to the question of the demolition of the partly demolished house on 1 Sussex Street. The scope of considerations relevant to the question of the use of this land as a Café and take-away food premises is, admittedly, wider than the scope of considerations relevant to a discretion aimed at preserving views and vistas of and including the Shrine of Remembrance, but they are not unlimited. I do not think they extend to conserving the house on 1 Sussex Street as a building of architectural or historic interests in circumstances where the planning scheme contains no control provisions of that sort, indeed where the planning scheme has been deliberately worded to allow demolition of that building."

93. The difference between the McDonald's case and the present one, in this regard, is that Mr Testro in McDonald's sought to rely on a different objective of planning, namely that in s.4(1)(d) rather than that in paragraph (a). Otherwise we think the passage is instructive. Without perhaps spelling it out, Mr Pitt implies that s.84B(1)(b) should persuade us to uphold his argument based on objective (a). It really only calls upon us to look at it to see if it is relevant to this particular case.

94. We find his argument in this respect to be rather contrived. He picks out of objective (a) the word "land" and reduces the objective to read "to provide for the fair, orderly ... use and development of land".

95. He then refers to s.6(1) PE Act which we have already referred to. He points to s.6(1)(a) which provides that a planning scheme must seek to further the objectives of planning in Victorian within the area covered by the scheme. We would have thought that this was something to be taken into consideration in the framing of the planning scheme. We are not here framing the planning scheme. We are merely carrying it out in the sense of exercising a discretion created under the planning scheme. We trust that those responsible for framing it did conscientiously seek, in accordance with s.6(1)(a) to further the objectives of planning in Victoria.

96. Having said that, Mr Pitt then returns to the definition of land and to its statutory definition for the purposes of the PE Act contained in s.3(1). The "definition" reads:-

(a) buildings and other structures permanently fixed to the land; and

(c) any estate, interest, easement, servitude, privilege or right in or over land;".

97. It must be noted that these words do not pretend to be a definition in the proper sense of the word. Land, in this Act, means whatever land would mean in the absence of this "definition" but the use of the word "includes" means that this "definition" seeks to make it clear that the propositions in (a) to (b) above are included within the concept. It is notable that what appears in the inclusive definition makes no mention of the soil, which is the most fundamental part of land. It makes no mention of what is under the surface of the soil or the air space above. It makes no mention of things growing in the land. The ordinary meaning of the word land, and its meaning in law, are broad concepts indeed. Out of all this Mr Pitt picks out the word "servitude" from inclusion (c) in the inclusive definition in s.3 of the Act. Land, he says, includes "any ... servitude ... in or over land".

98. A number of legal dictionaries are content to define servitude as an easement. Mr Pitt has confined himself to giving the definition in The Macquarie Dictionary, which is a general dictionary. It is given as a right possessed by one person in respect of some other person's property consisting either of a right to use such property or a power to prevent certain uses of the other property. He claims that the interest of a dominant tenement pursuant to a restrictive covenant is a servitude. We do not wish to quarrel with that.

99. However he then goes on in paragraph 1.3.2.7 to say:-

"It follows that the objectives of planning require a consideration of the fair and orderly use and development of that servitude."

100. What does this mean? How does one develop a servitude? How does one, in this case, develop a restrictive covenant? The restrictive covenant is limited by its own terms. It is not susceptible of "development", unless it be by modification of the wording of the covenant. On the other hand "use" here does not mean use of the covenant, but rather use of land meaning the whole concept of land. The concept of land might include servitude, but how does one "use" this restrictive covenant? Use here means use of the land for a purpose. It means that use in a planning sense. Land might be used as a shop or a dwelling or a factory or a place of worship. Use in objective (a) does not, in our opinion, mean use of a restrictive covenant, if that concept has meaning at all.

101. Mr Pitt's argument seems to imply, without spelling it out clearly, that we are called upon by these provisions he has referred to refuse the permit sought on the basis that the development it would allow would inhibit the use or development of the restrictive covenant. In some way, we suppose, this is meant to mean that permission cannot be granted for something that would require removal or amendment of the covenant, or at least that this is a consideration against granting such a permit. We have really already dealt with the separation that we find exists between such a permit and such a covenant. The permit is not a contravention of the covenant and does not invite one. It merely grants permission for a development of land which is constrained by the covenant and which cannot lawfully proceed unless and until the covenant is removed or modified.

102. This argument about the use and development of a servitude may be superficially appealing, but on examination it is contrived, and not logical. We wonder, if there were blackberries or rag wort or other noxious weeds growing in the land, whether Mr Pitt would argue that objective (a) would call for the fair and orderly use and development of such noxious weeds on the basis that they constitute part of the land.

103. Mr Pitt then advances another rather tenuous argument based on s.60(1)(a)(iii) and the meaning of the word "environment". The s.60 provision says that the Responsible Authority, before deciding on an application, must consider:-

"(iii) any significant effects of which the responsible authority considers the use or development may have on the environment ...".

104. Mr Pitt then goes on, quite correctly, to point out that ordinary non-technical English words to have their ordinary English meaning. He again goes to Macquarie and quotes its first definition of environment to be "the aggregate of surrounding things, conditions, or influences". The Concise Oxford Dictionary, 7th Edition gives environment as:-

"Surrounding; surrounding objects, region, or conditions, esp. circumstances of life or person or society whence environmental."

105. We have no quarrel with the Concise Oxford definition. That accords with our understanding of the ordinary meaning of the word, and so do the references to surrounding things and conditions in the Macquarie definition. We would not be troubled by the "influences" in Macquarie either, except for the use Mr Pitt has sought to make of it. We think that the environment means the surrounding circumstances that affect things, particularly living things within the area so as to be liable to be affected by those influences. Physical circumstances and influences are part of the environment. We do not think it means incorporeal (intangible) rights arising from private contractual obligations.

106. Mr Pitt has sought to argue this point by saying:-

"It is submitted that the existence of the restrictive covenants applying within the Estate have clearly been an influence on the use and development within the Estate and constitute an interest in the land comprising the appeal site held by the owners of the dominant tenements."

107. He is not here confining himself to the restrictive covenant on the subject land. It has not had much influence inasmuch as the only development on the land, namely the church and church hall, have been clearly in contravention of it. We do not think that it is within the "environment" referred to in s.60(1)(a)(iii). Even if it is, we have considered the matter to the extent of asking Mr Pitt to specify what difference to our assessment it made and found it to be irrelevant.

108. From paragraph 1.3.4.1 onward Mr Pitt refers to s.23(1) SD Act, s.6A(2) PE Act and Clause 7-1.5 of the planning scheme. We have dealt with these matters. The answer to his argument in this respect is that nobody, in this case, is seeking to proceed under s.23(1) SD Act.

109. Mr Pitt then goes on to discuss the concept of amenity and the degree to which it has subjective as well as objective aspects. We have noted what he had said on this subject and the cases here as referred to including Broad v Brisbane CC (1986) 59 LGRA 296. We have a good grasp on what is meant by amenity in this context. From this he moved to refer to the concept of "legitimate expectations". In this connection he referred to TCH Homes Pty Ltd v Stonnington CC & Ors (1997) 19 AATR 196 at 204 and Peech v City of Yarra, unreported Appeal No. 1994/44650. We have no quarrel with those cases or what he quoted from them. They make it clear that, whatever relevance or weight reasonable expectations might have in relation to planning, they are expectations that cannot be formed independently of the planning scheme requirements. A distinction can be drawn between the expectations that arise from the planning scheme and other expectations that might arise from the existence of restrictive covenants. One cannot slide from an argument about expectations arising from the planning legislation to others arising from other circumstances. As we have said, those with the benefit of covenants must look to the enforcement of the covenants to realise any expectations based thereon. As to considerations arising from the planning scheme, we have taken them into consideration.

"It is the objector's submission that only the mechanism for removing or varying a restrictive covenant provided by the Planning Scheme is relevant in these proceedings, and there is no prospect of any permit application satisfying the criteria in Section 60(5)."

111. He then went on to cite some cases about the difficulties of removing a covenant by means of a planning permit. We have already discussed that matter.

112. We agree that the other means of removing a covenant, that is to say other than by the means provided by the planning scheme, are not relevant to these proceedings. Furthermore, and for the reasons we have given, even the means provided by the planning scheme is not relevant.

113. The next question to consider is whether the design and siting of the proposed dwellings maintains and enhances the neighbourhood character and streetscape of the area.

114. Neighbourhood character is addressed in Element 3 of the Good Design Guide. The objectives of this Element are:

* To achieve medium density development which is respectful of its neighbourhood.

* To encourage innovative contemporary designs which make a positive contribution to the character of the neighbourhood.

* To maintain the garden character of neighbourhoods.

* To incorporate trees with spreading crowns into developments.

115. To decide whether or not a particular proposal satisfies these objectives, it is necessary to define the neighbourhood and design context of the site and to identify the factors that combine to establish the built form character of the area.

"considered that the neighbourhood is characterised by single storey detached dwellings with large front setbacks, separation of buildings and well maintained gardens with mature landscaping. The proposal will introduce elements that are clearly out of character within the immediate built environs. These elements include:

* the continuous building facing Lloyd Street and Summerhill Avenue;

* the lack of variation in building heights and styles;

* reduced front setbacks compared to the generous prevailing setback in the area;

* removal of all existing vegetation from the site;

* the significant increase in site density compared to the area;

* the provision of excessive hard surfaces for car parking;

* lack of landscaping at the rear of the dwellings."

117. Mr Pitt in his submissions and Mr Coomes in his report generally supported the Responsible Authority's position. Mr Pitt submitted that the:-

"dominant contributor to neighbourhood character in this area is the spaciousness arising from the detached house development in the locality, the significant contribution of landscaping, substantial frontage setbacks and whilst dwellings comprise a mix of styles, common elements include terracotta tiled roofs, generally detailed facades and setbacks from side boundaries."

118. In his report Mr Coomes described his analysis of an aerial photograph of the Estate which lead him to identify the following factors as major contributors to the neighbourhood character: generous dimensions of lots, in particular the wide frontages and generous setbacks from the street frontage and side boundaries; low site coverage; small areas of hard paving and the predominance of single storey Californian Bungalow style of houses on the Estate.

119. While these descriptions may be accurate for many of the houses on the estate, we consider that the neighbourhood context for the subject land extends beyond the estate. Also the part of the estate which does contribute to the site's context, displays variations of the characteristics that are inconsistent with Mr Coome's analysis.

120. Having heard the evidence and inspected the site and its surrounds, we note that the site context includes the impressive, effectively three storey school building with its extensive area of school grounds directly opposite the subject land on the north side of Summerhill Avenue. This building is set back some 7 to 9 metres from the frontage to Lloyd Street and this area is attractively landscaped. It is certainly visually dominant in this vicinity. We think it is fair to say that the school is the most dominant building in Rothesay Avenue and Summerhill Avenue, and is a key influence on the design outcome for the subject land.

121. The site context also includes more recent examples of housing, in particular the 1960s style house at No.3 Lloyd Street, directly opposite the subject land. There are also examples of more recently constructed two storey dwellings found at No. 4, 6 and 8 Fell Crescent.

122. While Lloyd Street is an entry to the Estate, all of the lots within the estate on the east side of Lloyd Street, including the subject land, are used or have been used for purposes other than residential. On the west side of Lloyd Street, five of the six lots within the estate comprise housing typical of early construction of the estate. However, as noted earlier, the house opposite the subject land on the south-west corner of Lloyd Street and Summerhill Avenue, (No. 3 Lloyd Street) appears to have been constructed in the 1960s.

123. We therefore consider that the site context within the Estate includes a number of influences which are not the typical characteristics of the estate as described by Mr Coomes.

124. We think that the site context also includes the dwellings and streetscape to the south of the subject land along Lloyd Street to Manning Road. This area is outside the estate, but nonetheless it forms part of the context for the subject land. Immediately to the south of the subject land across the right of way is what appears to be a studio with a gable roof form constructed above a garage at the rear of a single storey dwelling addressing Manning Road. This property has its side boundary to Lloyd Street and is set back between 1 and 2 metres from the street behind a high brick wall.

125. We think that the built form and character of the area which provides the context for the site, displays a diverse range of building scale and form and that the site can accommodate developments with a somewhat more contemporary design response which contribute to this diversity.

126. We do not think that the design and siting of the proposed development detracts from the neighbourhood character and streetscape of the area. In fact we agree with the project architect that the following design and style elements confirm that the design responds effectively to the site context.

127. The built form of the new dwellings presents as a series of roofs. These varying roof elements step back from the front set back from Lloyd Street and Summerhill Avenue.

128. The roof pitch is at 30 and 33 degrees and presents an image of multi-roof buildings. The dark red base brickwork combined with the sandy coloured render and terracotta tiled roofs reflect existing themes within the estate of dark plinths and higher walls. The verandah roofs are supported by double timber posts. The dwellings all have bay windows or recess balconies to articulate the facades and create visual interest. The dwelling footprints step in and out to provide visual interest and to strengthen the impression of individual dwellings, separated from the adjacent dwellings.

129. The four dwellings fronting Summerhill Avenue have setbacks of 8.5m to the main face of the building for dwelling 1 and 6m for dwelling 2, 3 and 4. Verandah elements encroach within the setbacks. Dwelling 1 is the transition between the houses in Summerhill Avenue to the east of the subject land and dwellings proposed on the balance of the site. Its immediate neighbour at No. 14 Summerhill Avenue has a setback from the street frontage of 9.3m to the main face of the building. The other proposed dwellings approach the corner of Lloyd Street and the setbacks are influenced by the school building directly opposite. Dwelling 4 on the corner of Summerhill Avenue and Lloyd Street, provides generous setbacks to both street frontages. We consider that the setbacks proposed for dwellings 1, 2, 3 and 4 are acceptable given that the site is on the corner of Lloyd Street and Summerhill Avenue, and is influenced by the school building directly opposite. These setback distances help to make the transition from the balance of the estate to this site at its entry. They are sufficient to accommodate attractive garden areas incorporating trees with spreading canopies shown on the landscape plan prepared by the project's landscape architect.

130. We consider that the second storey elements of the proposed dwellings fronting Summerhill Avenue, are acceptable and reflect the character of the school building on the opposite corner.

131. The four proposed dwellings facing onto Summerhill Avenue are detached dwellings although for site efficiency, each would be built, in part, to one of its side boundaries. There are no attached dwellings to face Summerhill Avenue. Dwelling 1, the transition dwelling between the subject land and the balance of the estate, is set back 3m from the side boundary with its neighbour at No. 14 Summerhill Avenue also being set back 3m from its side boundary. Dwelling 2 and 3 are built to the eastern side boundary and set back 1m off the western boundary. Dwelling 4, which is proposed on the corner of Summerhill Avenue and Lloyd Street is built to the eastern boundary and set back 4.5m from Lloyd Street at its closest point. The Tribunal considers that the siting of the dwellings fronting Summerhill Avenue, is acceptable on this corner site and that the dwellings will read as individual houses, with the separation accentuated by effective design.

132. For these reasons we consider that the siting and design of the proposed dwellings 1, 2, 3 and 4 which address Summerhill Avenue, is appropriate and acceptable within the context of the subject land. Further, we consider that the proposed dwellings satisfy the objectives of Element 3-Neighbourhood Character of the Good Design Guide.

133. The project architect has proposed a different siting treatment for the three dwellings facing Lloyd Street. Three attached dwellings are proposed and the main face of the buildings is set back 4m from the Lloyd Street frontage. A verandah encroaches into the setback area. The architect proposes to enclose the setback from the street frontage with a 1.7m high picket fence to create a semi - secluded open space area forward of the dwellings. The landscape architect is of the view that the setback is sufficient to accommodate tall trees with spreading canopies within an attractive garden setting. We accept this.

134. The architect has designed the attached dwellings fronting Lloyd Street to read as freestanding houses. This is achieved by substantially recessing the entry element at ground level and providing a balcony overlooking Lloyd Street at the upper level.

135. The site context plan and our inspection of the site and the general area confirm that Lloyd Street has a different character compared to Summerhill Avenue. The houses on the north east and north west corner of Manning Road and Lloyd Street face onto Manning Road, and have their sideage to Lloyd Street. The dwellings are set back between 1 and 2m from the side boundary, along which a high fence has been constructed. These lots are not within the Summerhill Estate. The lots directly opposite the subject land in Lloyd Street are included in the Estate. The main face of the building at No.1 Lloyd Street is setback approximately 15m from the street frontage and is occupied by a Californian Bungalow style house. The more recently constructed house on the north west corner of Summerhill Avenue and Lloyd Street is set back approximately 7.5m from Lloyd Street. We agree with the project architect that the high paling fences combined with the narrow setbacks from the sides of houses fronting Lloyd Street and the studio above the garage to the south of the subject land create a relatively hard edge to Lloyd Street between Manning Road and Summerhill Avenue. In this context, we accept that the attached form of the dwellings and the 4m setback are an appropriate design response.

136. However, we do not consider that a 1.7m high fence along the Lloyd Street frontage for dwellings 5, 6 and 7 is desirable or appropriate. In his evidence, the project's landscape architect proposed that a new picket fence 1.7m high will be constructed along the Lloyd Street frontage. We consider that the fence material should be pickets and that it should not exceed 1.2m in height to enable views into the front garden areas of the dwellings and to provide casual observation of the street. We think this fence treatment achieves a transition between the hard edge/sideage treatment on the property boundaries to the south of the subject land along Lloyd Street and the low, open construction fences of the school and the properties further along Lloyd Street in the Summerhill Estate.

137. We accept a solid 1.7m high fence along part of the Lloyd Street frontage for dwelling 4, (corner Summerhill Avenue) as this encloses the primary area of secluded open available for the dwelling. This fence treatment is acceptable given that it is setback 1 m from the frontage and is for a length of 8m compared to the total boundary dimension of approximately 22.5m.

138. For these reasons we consider that the siting and design of the proposed dwellings 5,6 and 7 which address Lloyd Street, is appropriate and acceptable with in the context of the subject land. Further, we consider that the proposed dwellings satisfy the objectives of Element 3-Neighbourhood Character of the Good Design Guide. It is acceptable from a neighbourhood character and streetscape point of view and is not an overdevelopment of the site.

139. The next question to consider is whether the development would have a detrimental impact on the amenity of neighbours because of overlooking, overshadowing and visual bulk. In assessing these issues we have referred to the objectives and criteria of the remaining design elements of the Good Design Guide.

140. The proposal has a density of 1 dwelling per 269m². We consider that this density is acceptable in the context of the site and that no unreasonable off-site impacts will result from the development of the site at this density. The proposal satisfies the objectives and criteria for this Element .

141. We was not presented with any evidence to suggest that the objectives and criteria for this design element could not be met.

142. This design element has been discussed earlier. For the reasons already given, we have concluded that the proposed development satisfies the objectives and criteria of this Element.

143. In addition to the earlier discussion, we note Mr McFall's evidence that the site contains the following trees which will have to be removed in order for the development to proceed: 5 Birch, 2 Liquidambar, 2 Melaleuca , 1Brush Box, 1 Banksia, 1 Pin Oak and 1 Fine Leaf Peppermint. We do not consider that the trees contribute much to the landscape quality of the streetscape and certainly not to the extent that the design should retain these trees. Furthermore, we consider that the landscape plan will more than adequately replace the lost trees with suitable canopy species which will enhance the site's contribution to the garden character of the neighbourhood.

144. The proposed site layout takes advantage of the right of way along the site's southern boundary to provide vehicle access and parking in locations that are not visible from Summerhill Avenue. Only one additional crossover is required and this is from Lloyd Street to access the double garage provided for Dwelling 4. This is acceptable. Garages will not dominate Summerhill Avenue or the Lloyd Street frontages.

145. The layout responds positively to the site features and provides all dwellings with a clearly identified entry from the street frontage. Upper level windows and balconies provide casual surveillance of the street and the internal service court area providing access to the rear garages.

146. The area of communal space is clearly delineated and comprises the driveways and accessways within the site.

147. All dwellings are provided with clearly defined areas of private open space.

148. The proposal achieves an effective and desirable transition from the Summerhill Avenue into Lloyd Street.

149. The only property directly affected by the proposal is the residential property to the east at No. 14 Summerhill Avenue. It is to the east of the site and will not suffer shading when the sun is to the east, north east, north or north west. In order to minimise any adverse effect on the amenity of this property, proposed dwelling No.1 is set back 3m from the side boundary making an effective separation distance of 6m between the dwellings. The Garages for dwellings 1 and 7 of the development are located in the south east corner of the site adjacent to the garage of No.14 Summerhill Avenue.

150. We accept that the setbacks from the street frontages are of sufficient size to accommodate effective and attractive canopy trees and garden areas to make a positive contribution to the streetscape and help to integrate the new buildings with the existing neighbourhood.

151. We have commented earlier about high fences on street frontages for dwellings 4, 5, 6 and 7. A high fence is also proposed within the street frontage setback for dwelling 2. The purpose of this high fence is to create a private garden extension for the adjacent living room. The fence is acceptable, given that it is set back 1 metre off the property boundary and is for the length of 4m compared to the total length of the frontage of 10m. The open space it encloses complements the private open space provided at the rear of the dwelling.

152. For these reasons the Tribunal considers that the proposed development satisfies the objectives and criteria of Design Element 4 of the Good Design Guide.

153. The site faces north and the site layout and dwellings have been designed to take advantage of this orientation and achieve energy efficiency.

154. The objectives and criteria for this element seek to ensure that:

* new development achieves acceptable setbacks, wall heights ,site coverage and visual bulk in the neighbourhood setting;

* adequate daylight is provided into the habitable rooms of new and neighbouring dwellings;

* sunlight is allowed into the secluded private open space and onto the windows of main living rooms of new and neighbouring dwellings.

155. The setbacks from the street frontages has been discussed earlier in the context of neighbourhood character. We have found that the setbacks proposed are acceptable in the neighbourhood setting.

156. The site has only one common boundary with a residential property to the east of the site at No. 14 Summerhill Avenue. The proposed dwelling No.1 is setback 3m from this common side boundary at the ground level and the first floor is setback 4.5m for the most part . The Guide's height related setback requirements from side boundaries are met. Daylight to the habitable rooms in the adjoining residence is not significantly reduced as a result of the proposed development and the open space at the rear of No.14 is not overshadowed according to the shadow diagrams. For these reasons we find that the proposal will not have an adverse impact on the amenity of No.14 Summerhill Avenue.

157. The garages for dwellings 1 and 7 are proposed to be located on the sites boundary in the south east corner of the site. This garage envelope corresponds to the garage envelope for the adjoining property and therefore it will not have an impact on the neighbour's amenity.

158. A two storey wall for dwelling 7 is proposed along the site's southern boundary with the right of way. The wall has a length of 13 m and will have no adverse impact on the residential amenity of neighbours to the south.

159. The Good Design Guide provides that buildings may occupy up to 60% of the site area. The responsible authority advised that "the site coverage complies but is generally higher than the area". The plans relied upon at the hearing show a site cover of 49.2% including the dwellings, garages and verandahs.

160. Visual bulk was a concern to the Responsible Authority given the lack of separation of the dwellings, the two storey elements and the limited set backs from the street frontage. As discussed, we have concluded that the detached house form for dwellings on Summerhill Avenue, is an appropriate design response and that the attached dwelling form on Lloyd Street, is also an appropriate design response given the differing streetscape character that prevails in these streets. We do not consider that visual bulk arises as an adverse issue due to the lack of separation between the dwellings. Further we consider that the two storey elements are acceptable and do not give rise to undue visual bulk, particularly given the effectively three storey school building across Summerhill Avenue. We accept that the setbacks from the street frontages are also acceptable.

161. We think that the proposed development allows adequate daylight into the habitable rooms of the new dwellings and that adequate sunlight access to secluded private open space and onto windows of main living rooms is also provided. This was not really in issue.

162. We conclude the proposal satisfies the objectives and criteria of Element 6 of the Guide.

163. The objectives and criteria for this element concern protection of the privacy of residents within the new development and surrounding the new development. The only potential for overlooking into the surrounding properties arises from the upper level windows in the eastern elevation of dwelling 1. These windows look out over the roof of the neighbouring dwelling, however views into the private open space at the rear is possible. The plans considered at the hearing show opaque glazing fitted to two of the three windows. We propose a condition that requires this treatment for all windows to ensure that the objectives and criteria of Element 7 are met.

164. The Responsible Authority expressed concern about potential overlooking to open space within the new development from the south facing first floor bedroom 2 window in dwelling No.3, and east facing first floor windows in bedrooms 2 and 3 in dwellings 5, 6 and 7. The views from these windows are not direct or close. However overlooking is possible.

165. We propose to include an appropriate condition on the permit to address this concern and ensure that the objectives and criteria of Element 7 are satisfied.

166. Subject to the inclusion of these conditions, the Tribunal is satisfied that the objectives and criteria of Element 7 are met.

167. The Responsible Authority submitted that the proposed development complies with the requirements of the Guide. Each dwelling is provided with two on site car parking spaces. Dwellings 1, 2, 3, 5, 6,and 7 have their garages located at the rear accessed from an internal driveway from the right of way along the southern boundary of the site.

168. The only garage visible from the street and accessed directly from Lloyd Street is the garage for dwelling 4. This garage is setback 5m from the street frontage and is not visually dominant in the context of the total development. The proposal includes provision to increase the width of the right of way from 3 to 4.3m.

169. Mr Jones on behalf of the applicant for review lead expert traffic evidence from Michael Durkin, Director Greg Tucker and Associates. His evidence was that outside school day drop off and pick up times there are ample on street vacancies with in the vicinity of the site; public transport is available; the additional traffic likely to be generated by the development could not be said to compromise the traffic functioning and safe operation of Lloyd Street, the right of way, and the adjoining road network; any risk to pedestrians would not arise from any design fault in the access arrangements; the number of parking spaces provided for residents exceeds the Good Design requirements; visitor parking can reasonably rely on on-street vacancies; and the layout and dimensions of parking bays, aisles and driveways comply with the guide except the garage for dwelling 2 . This will need to be lengthened by 0.5 m to 6m to comply with the Guide. We accept his evidence.

170. We accept that the access arrangements are tight but satisfactory and reflect the applicant's reasonable objective to minimise the dominance of car parking. We accept that the objectives and criteria for Element 8 have been met.

171. The objectives and criteria for this element seek to ensure that sufficient private open space with good amenity is provided for the reasonable recreation, service and storage needs of the residents. The Responsible Authority noted that the proposal satisfies the requirements of the Guide. All dwellings are provided with adequate private open space at ground level. The amount of open space and the amenity of the open space varies from lot to lot. Dwelling 1, for example, is provided with 104.6 square metres of private open space, however the total open space is 189.6m².

172. Dwellings 5, 6 and 7 (the attached dwellings fronting Lloyd Street), have a total of 58 square metres of private open space. This is in two parts; one is at the rear of the dwelling, and the other is forward of the dwelling, but enclosed by a fence. We require the high fence proposed to be replaced with a lower fence. This means that Dwellings 5, 6 and 7 are provided with 29.4sq m of private open space. On balance we think we think this is an acceptable outcome.

173. We are satisfied that the objectives and criteria for this element can be met.

174. We find that the objectives and criteria for the element have been met. Each dwelling has a clearly identifiable entry which stands alone from its neighbours. All of the dwellings directly face onto a public street and have their own address.

175. It follows therefore that we are satisfied that the proposal complies with the objectives and criteria of the Good Design Guide for Medium Density Housing, and Clause 21 of the Stonnington Planning Scheme. We think that the proposal respects the context of the site and responds to the prevailing conditions in an effective and desirable manner resulting in the creation of attractive and quality living environments for new residents. We see this corner site as having a wider context than just the Summerhill Estate, and we do not think that our assessment and approval of this particular proposal opens the way for the destruction of the character of the Estate. We think that the proximity of the site to the school building is a significant consideration in deciding the appropriate form of development on the land.

176. For these reasons, the application for review is allowed, the decision of the Responsible Authority is set aside a permit is granted for the use and development of land at 2 to 4 Lloyd Street Malvern East, for the purpose of seven, two storey dwellings in accordance with the submitted plans, prepared by the office of Neil Evans and Noel McKernan Pty Ltd, Ref-96-09 drawing No.1A, 2A , 3A, 4A, 5A, 6A and 7A.

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