VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11598/2021
permit application no. P45/2021

ApplicantS	Carmen De Bono and George De Bono	

Responsible Authority	Brimbank City Council	
Respondents	Andrea Cassar	
	Angela Pavlidis	
	Brenda Girdlestone	
	Carmel Ann Blazey	
	Christopher Cassar	
	Dianne Mary Butt	
	Doris Topic	
	Gary Charles Niewand	
	George Butt	
	George Roumpos	
	Ian Ralph Blazey	
	Janet Caroline Niewand	
	Kaliopi Poppy Roumpos	
	Kerrie Marie Frew	
	Lyn Carolyn LeRoy	
	Nick Pavlidis	
	Rhonda Goodgame	
	Steve LeRoy	
Subject Land	13 Macdonnell Court
TAYLORS LAKES  VIC  3038	
date of hearing	27 May 2022	
DATE OF ORDER	14 June 2022	
Citation	De Bono v Brimbank CC [2022] VCAT 638	

Order
1	The hearing scheduled to commence at 10.00am on 21 June 22 is vacated. No attendance is required. 
2	This application is listed for a practice day hearing as detailed below.
The hearing will be at 55 King Street, Melbourne.
If there is any change to these details, the Tribunal will notify you.

Practice Day Hearing:	
Date	13 July 2022
9am – 10am 	

Start time	For details of the start time, please refer to the Tribunal’s website (www.vcat.vic.gov.au/todays-hearings) after 5.00pm on the day before the hearing	
Duration 	60 minutes	
Conduct	Online Platform	
The details of the online platform will be provided to the parties before the hearing.
3	The purpose of the practice day hearing is to consider:
•	the future conduct of the proceeding, including hearing dates and any procedural orders that may be required;
•	whether the applicant is seeking to amend the application plans to comply with the registered restrictive covenant and to whom notice should be given;
•	whether any additional planning permission is sought to vary or remove the restrictive covenant; and
•	whether the application should be struck out or summarily dismissed. 
4	Any party wishing to be heard at the practice day hearing must file and serve a copy of submissions including any procedural or final orders sought by 6 July 2022.
Amend name
5	Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the application is amended by changing the name of the applicant to:
Carmen De Bono and George De Bono
6	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 the permit application is amended by changing the name of the permit applicant to:
Carmen De Bono and George De Bono
Further service
7	The applicant is directed to serve a copy of the application for review and associated documents including notice of the amended plans on the following people (if not already served) by close of business 17 June 2022 and to advise that they have until 1 July 2022 to submit a Statement of Grounds in the proceeding (if not already provided): 
•	The occupier, 89 Nordic Avenue, Taylors Lakes
•	A & N Pavlidis, 4 Macdonnell Crt, Taylors Lakes
•	B Girdlestone, 8 Macdonnell Crt, Taylors Lakes. 

Dalia Cook
Member

APPEARANCES:		
For Carmen and George De Bono	Matthew Townsend, of Counsel instructed by CS Town Planning 	
For Brimbank City Council	John Klarica, town planner, Calibre Planning	
For Lyn Carolyn LeRoy, Ian Ralph Blazey, Steve LeRoy, Dianne Mary Butt, George Butt, Kaliopi Poppy Roumpos, Carmel Ann Blazey	Lyn LeRoy, In person	
For Andrea Cassar, and Christopher Cassar, Angela Pavlidis, Nick Pavlidis, Doris Topic, Kerrie Marie Frew	In person	
For George Roumpos	Poppy Roumpos	
For Janet Caroline Niewand, Gary Charles Niewand	Lorraine Stupak, town planner, of LS Planning	
For Rhonda Goodgame	Neil Goodgame	
	No appearance for the other respondents	

REASONS

Introduction
1	The applicant seeks permission for the construction of two additional dwellings on the subject land.  
2	A key purpose of this hearing was to consider whether the proposal would breach any provisions of a registered restrictive covenant applying to this land.  
3	A relevant consideration is that by virtue of section 61(4) of the Planning and Environment Act 1987 (PE Act), a planning permit cannot be granted that would breach a registered restrictive covenant, unless a permit has been issued or decision made to vary or remove the covenant.  
4	As at the date of this hearing, the applicant had not applied for a planning permit to vary or remove the restrictive covenant.  
5	A further purpose of the hearing was to consider the extent of notice that should be directed of the application for review.  
The restrictive covenant 
6	The covenant in Instrument T742294L creates multiple restrictions on the use and development of the land.  Its full text is included in documents filed with the Tribunal and I do not replicate it in full.  
7	Relevantly, two elements of the covenant provide that the transferees will not: 
b.	Erect or cause or permit to be erected or remain erected on the land hereby transferred any part thereof any building other than: 
(i)	a dwelling house having an interior floor area of not less than 149 square metres and having not less than 75% of all external walls (save for provision for windows, doors, fascias and gables) of brick or stone…
f.	without further consent of the Responsible Planning Authority allow any residential development on the lot hereby transferred that does not comply with the requirements of Elements E2, E3, E4 and E11 of the Victorian Code for Residential Development (VicCode).  
8	The applicant has identified benefitting land in its submissions.  
9	As mentioned, the permit application does not seek permission to vary or remove the restrictive covenant.  
10	The application plans currently before the Tribunal in the proceeding are those that formed the decision plans.  
11	Council did not consider that the plans demonstrated compliance with the stated elements of VicCode and refused to grant its consent for a departure.  
12	The applicant filed amended plans that it proposes to substitute in this proceeding.  Notice was given in accordance with Practice Note PNPE9 but the date for statements of grounds had not passed as at the date of this hearing and the plans remain to be substituted, subject to hearing the views of parties.  
13	I have assessed the extent of compliance with the restrictive covenant by reference to the decision plans but have also had regard to the amended set of plans to provide clarity to the applicant. 
Would the proposal comply with the restrictive covenant? 
Is it a single dwelling covenant?
14	I am unable to accept submissions from Ms Stupak on behalf of Mr and Mrs Niewand that the restrictive covenant, properly applied, would limit the development of this land to a single dwelling.  
15	On the contrary, having regard to the wording used in its context and relevant case authority including Tonks v Tonks, I am satisfied that the restrictive covenant would not prevent a second dwelling from being constructed (if otherwise appropriate on the planning merits).  
16	I am not persuaded that the contextual reference to detached housing in the original planning permit for the subdivision (issued in 1994) changes this view.  This refers to a particular use permission that may have been surpassed by the current planning controls in the scheme. In any case, even on the wording of the original permit, there would still be a possibility of any number of detached dwellings on a lot and there is no indication in the covenant that it is confined in this way.  
17	Likewise, a single dwelling restriction cannot be implied by the wording of the relevant version of VicCode which is broadly focussed on single dwellings but does not itself prevent more than a single dwelling on a lot.  It would also need to have been explicit in the restrictive covenant itself to have this effect.  
18	There are a number of indications of this in the wording of the covenant itself, which refers to the words ‘any dwelling house’ and the land only being used for residential purposes without specific limitation.  
Would the external materials percentage be complied with?
19	It appears that, consistent with Council’s submissions, the application plans show more than 75% of the external materials for each additional dwelling of brick or face brickwork.  
20	This is reinforced by additional calculations provided on the amended application plans sought to be substituted in this proceeding.
21	In any event, if there was any doubt about this, it would be a relatively simple matter to require compliance with this aspect of the covenant by way of a permit condition in respect of plans to be endorsed (if it was appropriate to issue a permit having regard to all planning merits). 
Would the proposal comply with the stated elements of VicCode? 
22	VicCode has now been replaced by the provisions of ResCode in Clauses 54 and 55 of the planning scheme.  Notwithstanding, its former provisions (as at the date the covenant was introduced) remain applicable for the purpose of the covenant, which is in the nature of a private property agreement.  A full copy was provided by the parties. 
23	VicCode contained a series of: 
Objectives – describing the principal aims of each design element
Performance criteria – presenting a range of outcomes intended to meet the element objectives
Performance measures – specific measures which are one way of meeting both the performance criteria and element objectives.  
24	Mr O’Shea conceded on behalf of the applicant that not all relevant performance measures would be achieved by this proposal.  However, he considered this did not prevent compliance with the various elements of VicCode being established notwithstanding since relevant objectives would be met.  
25	Element 2 addresses building siting and design.  Its objectives focus on building siting to meet privacy and daylight needs of users and achieving energy efficiency.  It seeks for the scale, height and length of buildings relative to site boundaries to be of appropriate residential character.  Building siting needs to take account of site features and constraints. 
26	Council was particularly concerned about a lack of north facing windows and the limited rear setback to the northern boundary, which should be a minimum of 6 metres under the performance criteria. 
27	Some objectors submitted that the scale and height of the proposed new dwellings were not of appropriate residential character.  
28	The applicant responded that sustainability initiatives have progressed in recent years and can address energy efficiency through measures other than a northern orientation, evidenced by the sustainable design assessment accompanying the permit application.  
29	I am not satisfied that this element has been complied with.  The original application plans do not adequately address daylight issues and are complicated by the orientation of the new dwellings on the land.  I am not persuaded that the dwellings will be suitably energy efficient as this objective is contemplated by VicCode in a building siting and design sense.  In addition, I do not consider that the modifications proposed in the amended plans would satisfy this element.  
30	Arguably, it is not simply a matter of providing additional west facing shading devices as proposed in the amended plans to overcome the deficiencies in the layout and orientation of the new dwellings relative to the Code’s aspirations.  This is reinforced by the minimal northern setback to the rear dwelling and attached nature of the new front dwelling at the northern juncture, despite the proposal to include additional windows on the northern elevation in the amended plans.  
31	Likewise, compliance with BESS best practice is not tantamount to compliance with this element of VicCode.  It is clear that the particular BESS assessment undertaken of this proposal focuses on matters that are more in the domain of building compliance and residential behaviour compared with the more fixed issues of siting and design that are contemplated by this element of VicCode.  
32	I am less convinced that the scale and height of the new dwellings is not of appropriate residential character, since they appear to be relatively conventional for this particular site and area.  They also appear to comply with performance measure 8 of this element of VicCode (which is generally similar to Standard B17 of ResCode).  
33	That said, there may still be concerns about the dwelling layout, design and siting having regard to broader planning merits, including the current provisions of ResCode, neighbourhood character and amenity; as distinct from under VicCode.  However, these would be considerations for any substantive hearing if the application proceeds. 
34	Element 3 addresses private open space.  Its objective is to provide each dwelling with private open space meeting the reasonable recreational, service and storage needs of residents.  I am not persuaded by Council that the proposal would not achieve this objective.  
35	Likewise, the performance criteria are performance-based and it appears that the proposal would provide a useable space accessed from living areas, would provide sufficient privacy and would be suitably orientated for solar access.  
36	While there is some debate about the extent to which the performance measure relating to the area and dimension of private open space is met (either on a dwelling by dwelling basis, or for the land overall), in my view this does not invalidate a finding that the objective and criteria would still be met.  This is but one way of demonstrating that the objective and criteria would be met but is not mandatory. 
37	Element 4 addresses vehicle parking.  Its objectives focus on providing sufficient and convenient parking for all users, ensuring parked vehicles do not obstruct traffic or cause hazards and ensuring parking facilities do not detract from streetscape amenity and surveillance. 
38	Council considered these objectives and relevant performance criteria would not be met since the application plans depict two crossovers, one of which exceeds the preferred maximum width. 
39	I accept that crossover widths may exceed those in the performance measures, but I accept the applicant’s submission that this is but one way of achieving the relevant objectives.  Overall, I consider that the proposal appears to exhibit a good level of compliance with all relevant objectives and it has not been demonstrated that the proposed crossover arrangement would be a hazard per se. 
40	That said, I accept that from a streetscape perspective, Council may have valid concerns about the dual crossover arrangement and the extent of hard stand areas.  The amended plans seek to address this issue on the planning merits, but I do not consider this is strictly required in order to comply with this aspect of the covenant. 
41	Element 11 addresses utilities provision.  Council did not raise concerns with compliance with this element and it appears that all objectives and performance criteria can be met for this proposal, subject to satisfying relevant servicing authority requirements.  
42	For these reasons, I consider that the application fails to comply with Element 2 in terms of its fundamental siting and design of the two additional dwellings.  
Relationship between the review proceeding and the restrictive covenant 
43	The applicant submitted that if the Tribunal on review were to support the grant of a permit, this would be tantamount to consent being granted by the responsible authority to vary the requirement under the restrictive covenant. 
44	I am unable to accept this argument and consider it conflates two distinct roles of Council.  
45	Instead, I find there is no power for the Tribunal to substitute its consent under the restrictive covenant even if it were to support the merits of the planning permit application. 
46	I consider that there is a clear opportunity for the Tribunal on a review under section 77 of the PE Act to set aside a decision of Council as the responsible authority and to grant a permit if appropriate.  
47	By contrast, the PE Act does not provide any review rights in respect of anything done or refused to be done under a restrictive covenant, including under section 149.  This is distinguishable from a failure to grant consent under the provisions of a section 173 agreement, which is an instrument created under the auspices of the PE Act.  A covenant is in the nature of a private property restriction. 
48	This puts to rest the applicant’s submission that there would be no breach of the restrictive covenant so long as discretion remains to permit a variation under the covenant.  At this point in time, Council has refused to exercise this discretion favourably.  This is not a matter that is subject to review by the Tribunal.  
49	The fact the covenant itself refers to further consent being able to be obtained from the Responsible Planning Authority is somewhat of a misnomer.  In fact, it would appear to be the consent of Brimbank City Council as the municipal authority that is required.  In my view, this is a separate permission from the grant of a planning permit. 
Implications of non-compliance with the covenant 
50	Section 61(4) of the PE Act is an important stop gap.  It provides that: 
If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant. 
51	This constraint applies equally to the Tribunal on review. 
52	Therefore, in my opinion, it would be inappropriate to direct notice of the application to beneficiaries or by a sign on the land or by newspaper as was discussed at the hearing.  This is because no permit could be granted for the proposal in its current form having regard to the covenant. 
Progressing the permit application
53	For this reason, I consider the hearing cannot progress as scheduled, even on the basis of the plans proposed to be substituted in the proceeding.  
54	The applicant now will need to consider whether it wishes to withdraw the permit application (rather than risking a strike out application), whether it is in a position to modify the application plans to comply with the covenant (which would require substantive change) or whether it seeks a planning permit to vary the covenant (and to what extent).  
55	Further notice may be required depending on which avenue is chosen. 
56	I consider that it is appropriate to list this matter for a Practice Day Hearing in a month to enable the applicant to consider the future of its permit application in light of these findings. 

Dalia Cook
Member

Help and support
Information for all parties is available at the Tribunal’s website www.vcat.vic.gov.au

For information about what happens after you make your application, visit
www.vcat.vic.gov.au/afterapplyplanning

For information about responding to an application visit www.vcat.vic.gov.au/respondplanning

If you are not able to access the website, contact the Tribunal on 1300 01 8228 Monday to Friday 9.00am to 4.30pm to request a paper copy.

To find out about the Tribunal’s support services such as interpreters, disability support and security, visit www.vcat.vic.gov.au/support