VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL · Web viewMs Kimberley owns the land at 5 Kildrummie...

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

PLANNING AND ENVIRONMENT LISTVCAT REFERENCE NO. P1603/2017

PERMIT APPLICATION NO. P16/2508

CATCHWORDSSection 77 of the Planning and Environment Act 1987; Clause 52.02 of the Mornington Peninsula Planning Scheme; variation of restrictive covenant; Section 60(5) of the Planning and Environment Act 1987

APPLICANT Simon Stuart

RESPONSIBLE AUTHORITY Mornington Peninsula Shire Council

RESPONDENT Christine Kimberley

SUBJECT LAND 3446 Point Nepean Road, Sorrento

WHERE HELD Melbourne

BEFORE Juliette Halliday, Member

HEARING TYPE Hearing

DATE OF HEARING 4 December 2017

DATE OF ORDER 24 January 2018

CITATION Stuart v Mornington Peninsula SC [2018] VCAT 67

ORDER

Parties to proceeding1 Pursuant to section 60 of the Victorian Civil and Administrative Tribunal

Act 1998, the following person is joined as a party to the proceeding:

Ms Christine Kimberley.

No permit granted1 In application P1603/2017 the decision of the responsible authority is

affirmed.

2 In planning permit application P16/2508 no permit is granted.

Juliette Halliday

Member

APPEARANCES

For applicant Ms Tiphane Acreman, Barrister, instructed by Cornwall Stodart. She called the following witness:

Mr Simon Stuart.

For responsible authority Mr Luke English, Solicitor, of Mornington Legal.

For respondent Ms Tania Cincotta, Solicitor of Best Hooper.

VCAT Reference No. 1603/2017 of 19

INFORMATION

Description of proposal Variation of a restrictive covenant and retrospective approval for the construction of a fence.

Nature of proceeding Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.

Planning scheme Mornington Peninsula Planning Scheme

Zone and overlays General Residential Zone – Schedule 1 – Mornington Peninsula Town Areas (GRZ1)Design and Development Overlay – Schedule 3 – Coast and Landscape Design (DDO3)Environmental Significance Overlay – Schedule 25 – Port Phillip Coastal Area (ESO25)Vegetation Protection Overlay – Schedule 1 – Township Vegetation (VPO1)

Permit requirements Clause 42.01-2 of the ESO25 (construction of a fence specified in the schedule to the overlay)Clause 43.02-2 of the DDO3 (construction of a fence specified in the schedule to the overlay)Clause 52.02 (under s 23 of the Subdivision Act 1988 to vary a restriction)

Relevant scheme policies and provisions

Clauses 11,12, 15, 42.01, 43.02, 52.02, and 65


Land description The subject land is an irregular ‘battle axe’ shape, located on the eastern side of Point Nepean Road, Sorrento. It has a frontage to Point Nepean Road of approximately 5.5 metres and an overall depth of approximately 160 metres. At the end of the driveway (which is approximately 100 metres in length) the subject land widens to approximately 17.6 metres. The subject land is developed with a single dwelling and is landscaped. The eastern part of the subject land terminates at a cliff edge, with frontage to Port Phillip Bay. There is a steep drop from the cliff edge directly down to waters of the Bay. There are expansive views to nearby beaches and Port Phillip Bay from the subject land.

Tribunal inspection 15 December 2017


REASONS1

WHAT IS THIS PROCEEDING ABOUT?1 The subject land is affected by a restrictive covenant, part of which

limits the height of the southern boundary fence to 18 inches (0.46 metres). The applicant seeks a planning permit in two parts. Firstly, for the variation of the covenant to allow a higher fence, ranging between about 1.5 to 2.2 metres. Secondly, retrospective approval is sought for the construction of the brush fence which already exists on part of the southern boundary of the land, ranging in height between about 1.5 to 2.2 metres (the New Fence).

2 The responsible authority refused the application on the basis that it ‘cannot be satisfied that the proposed covenant variation meets the tests required by section 60(5) of the Planning and Environment Act 1987 (PE Act) as an objection has been received from a legal beneficiary who has perceived that they will suffer detriment.’

3 The applicant seeks review of the responsible authority’s decision,2 and submitted that there would be no detriment to any beneficiary in allowing the covenant to be modified to facilitate the New Fence. It was submitted that the objection made by an owner of land which has the benefit of the covenant is so clearly without merit that it should be considered to be vexatious or not made with good faith within the meaning of s 60(5) of the PE Act, taking into account the applicant’s contention that the beneficiary of the covenant who has objected acquiesced to the breach of the covenant.

4 It was submitted on behalf of the applicant that the variation of the covenant to allow construction of the New Fence will not result in any material planning detriment to any person, and the New Fence complies with clause 52.02 of the planning scheme. It was also submitted that the fence is an acceptable planning outcome in terms of the relevant permit triggers under the ESO25 and DDO3, and the physical context of the subject land.

5 A statement of grounds was filed with the Tribunal opposing the grant of the permit by Ms Kimberley, an objector with the benefit of the covenant. Amongst other things, it was her submission that the variation of the restrictive covenant will be detrimental to the enjoyment of her property, the amenity of the area and contrary to the purposes of the restrictive covenant.

1 The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

2 Under s 77 of the PE Act.


WHAT ARE THE KEY ISSUES?6 My consideration of the application focusses on the following key

issues:

a Would the proposed variation to the covenant satisfy the requirements of s 60(5) of the PE Act?

b If the requirements of s 60(5) are satisfied, should a planning permit be granted having regard to the provisions of clause 52.02 of the planning scheme regarding the variation of the restriction?

c Would the fence represent an acceptable outcome when balancing all relevant planning considerations, including those under ESO25 and DDO3?

7 Having considered all submissions and the evidence of Mr Stuart, I conclude that a permit cannot be granted to vary the covenant as it is precluded under s 60(5) of the PE Act. My reasons follow.

PROCEDURAL ISSUES & RULINGS 8 Ms Kimberley owns the land at 5 Kildrummie Court, which enjoys the

benefit of the covenant. She objected to the planning permit application, and sought leave to be joined as a party to the proceeding and appear at the hearing, as a late statement of grounds was filed with the Tribunal on her behalf. No party objected, and as Ms Kimberley was overseas for three months, I am satisfied with the explanation for the late filing her statement of grounds. I have ordered that Ms Kimberley be joined as a party to this proceeding.

9 In response to orders made after the hearing, the applicant provided a revised version of the proposed variation to the restrictive covenant, and submissions concerning the draft permit conditions. The other parties were provided with the opportunity to make submissions in response. Written submissions in response to these orders were made on behalf of the applicant and Ms Kimberley.

WOULD THE PROPOSED VARIATION TO THE COVENANT SATISFY THE REQUIREMENTS OF S 60(5) OF THE PE ACT?

Wording of the covenant and variation proposed10 To establish the properties with the burden and the benefit of the

covenant, I have relied on the information provided by the applicant and the responsible authority.

11 The subject land comprises four titles, two of which are burdened by the restrictive covenant3, and two of which are not.4 The restrictive covenant is set out in Transfer of Land A718162 dated 10 April 1959.

3 Being certificates of title volume 11565 folio 034 and 035 (Lots 1, 2 and 3 on title plan 318554U).4 Being certificates of title volume 11565 folio 032 and 033 (Lots 1 and 2 on title plan 318245J).


The part of the covenant relevant to this proceeding applies a restriction on the height of the fence and planting to the eastern part of the subject land,5 closest to the cliff edge (including part of the southern boundary of the subject land).

12 The covenant provides that the owner of the subject land:… will not at any time plant cultivate or place on the land delineated and coloured green on the plan endorsed hereon any trees or shrubs nor at any time erect place or instal on or permit to be erected placed or installed on the land delineated and coloured green on the plan endorsed hereon any building structure or erection of any nature whatsoever save and except a fence not exceeding in height eighteen inches above the existing ground level at point ‘A’ on the said plan nor erect place or instal or permit to be erected placed or installed on the land delineated and coloured red on the said plan any buildings structure or erection of any nature whatsoever of a greater height than twenty two feet from the present natural level of the land at point ‘A’ on the said plan which last mentioned point is at a height of 47.97 feet above the State Rivers and Water Supply Commission’s datum for levels nor permit any tree or shrub on such land to grow above such height…

13 The applicant and the responsible authority informed the Tribunal that the land with benefit of the covenant is as follows:6

Address Title Plan

5 Kildrummie Court

8640/781 LP062115

7 Kildrummie Court

8986/196 TP485593W

9 Kildrummie Court

8460/783 TP653545Y

3448 Point Nepean Road (eastern portion only)

8812/355 LP069257

3450 Point Nepean Road (narrow strip on southern boundary only)

9464/018 LP139500

5 Being the land shown green on transfer A718162 and shown blue on TP318554U.6 Being all the land remaining untransferred in certificate of title volume 8225 folio 811 at the date

of transfer on 10 April 1959, being the land shown green, red and blue in certificate of title volume 8225 folio 811.


14 All benefiting properties, except 3448 Point Nepean Road have frontage to Port Phillip Bay.

15 The permit application proposes to vary the wording of the covenant as follows:

… nor at any time erect place or install on or permit to be erected placed or installed on the land delineated and shown hatched on the plan endorsed hereon any building structure or erection of any nature whatsoever save and except:

- A fence (other than on the southern boundary of the land) not exceeding a height of 0.46 metres above the height of 14.09 metres based on the Australian Height Datum

or

- A fence on the southern boundary of the land not exceeding the heights (based on the Australian Height Datum) as detailed and set out on this plan

Nor erect place or install or permit to be placed or installed on the land delineated and coloured red on the said plan any buildings structure or erection of any nature whatsoever of a greater height 6.705 metres above the height of 14.09 metres based on the Australian height datum nor permit any tree or shrub on such land to grow above such height…

16 The main change proposed is to allow the construction of a fence along part of the southern boundary of the subject land which is greater than 0.46 metres. The variation seeks to allow a fence ranging in heights between about 1.5 to 2.2 metres, extending for a length of approximately 30.27 metres. The New Fence is higher than what is permitted under the restrictive covenant.

17 I accept Council’s submission that the word ‘or’ between the two paragraphs in the proposed variation should be changed to ‘and’. I also note that a number of the variations proposed are to convert the level datum from the State Rivers and Water Supply Commission to Australian Height Datum and to convert from imperial measurements to metric.

Notice and objection to the variation of the covenant18 The Practice Note material filed by the responsible authority indicates

that notice of the application was given to all the owners and occupiers of benefitted land in accordance with s 52(1)(ca) and 52(1AA) of the PE Act.

19 Following advertising of the permit application, two objections were received. One objection was from Ms Kimberley, a benefitting landowner, who also filed a statement of grounds and participated in the Tribunal proceedings. The eastern end of 5 Kildrummie Court is the


edge of a cliff, and it has expansive views across Port Phillip Bay from the cliff top.

20 Ms Kimberley opposes the grant of the permit and her concerns about the proposed variation of the covenant include the following:

i The protection afforded by covenant preserves the amenity of the beneficiaries’ properties, including uninterrupted bay and beach views and a largely natural bayside environment;

ii The application to vary the covenant is an attempt to erode the protection afforded by the restrictive covenant and the valuable sensitive coastal environment sought to be protected under the restrictive covenant;

iii Prior to the acquisition of her property, Ms Kimberley relied on the protection afforded by the covenant in preserving the amenity of her property, including uninterrupted bay and beach views and a predominantly natural coastal environment;

iv The proposed variation to the covenant will ‘open the floodgates’ to other forms of variations, including other fences, built form or trees which will impact on the special character of the area, the enjoyment of these properties and detrimentally impact on views of the natural environment and the coast; and

v The beneficiaries will suffer detriment as a result of the variation of the covenant. The variation of the covenant will be detrimental to the enjoyment of the Kimberley property, the amenity of the area and contrary to the purposes of the restrictive covenant.

21 Ms Bell, the owner of the adjoining land to the south at 3444 Point Nepean Road, Sorrento (which does not enjoy the benefit of the covenant) also objected, and filed a statement of grounds with the Tribunal, but chose not to participate further in the proceeding. The applicant informed the Tribunal that a portion of Ms Bell’s land at 3444 Point Nepean Road, Sorrento (a long thin triangle to the south of the shared boundary with the subject land) is also burdened by the same covenant which burdens the subject land.

22 Although Ms Bell’s property does not have the benefit of the restrictive covenant, she is entitled to object, as persons without the benefit of a covenant may be affected by a permit application under clause 52.02 and their interests should also be considered.7

Evidence of Mr Stuart23 Mr Stuart is the permit applicant, who was called to give evidence

about the old fence on the southern boundary of the subject land and a hedge next to it, and the construction of the New Fence (amongst other things). Whilst I accept Ms Cincotta’s submission that the weight to be

7 Hill v Campaspe SC (Red Dot)(2011) VCAT 949 at paragraph [60].


placed on Mr Stuart’s evidence should be limited because he is the permit applicant (and he owns the subject land with his mother), I have taken into account his evidence regarding the description of the old fence and the old hedge and the construction of the New Fence, together with his the description of the visibility of the New Fence from the properties with the benefit of the covenant in reaching my conclusions in this matter.

24 Amongst other things it was Mr Stuart’s evidence that:

a. The old fence on the southern boundary of the subject land (the Old Fence) was in place for about 30 -35 years before it was removed in June 2016. It consisted of two sections. The eastern section (closest to the cliff edge) was constructed from wire mesh (with a brush fencing next to it) and was about 1 metre in height. The second (western) section of the Old Fence was constructed of fibre cement board which was about 2 metres in height. It was removed in June 2016;

b. The hedge which was planted in front of the Old Fence on the subject land (the Old Hedge) was about 3 metres in height from around 1990. It was removed in January 2016;

c. He did not believe he needed a permit for the construction of the New Fence, and although he knew the covenant existed, he was unaware of the restrictions on the fence height and planting in the covenant at the time the New Fence was constructed;

d. The New Fence was constructed in June 2016 and is made of brush panels. The brush panels are 1.8 metres high, placed on top of a 20cm plinth at the western end of the New Fence, and go down to 1.5 metres high on a 20cm plinth at the eastern end of the fence which is closest to the cliff. 1.5 metre native trees have been planted in front of the New Fence. At the request of the adjoining owner to the south, the last two panels at the eastern end of the fence were lowered in June 2016; and

e. The Old Fence and the Old Hedge both breached the restrictive covenant.

25 I note that material submitted with the permit application indicates that the Old Fence included a length of approximately 14 metres of 2 metre high ‘Hardiplank fence’ and a length of approximately 17 metres of 1 metre high steel mesh fence (being the eastern part of the fence, closest to the cliff).

26 With respect to the visibility of the New Fence from properties with the benefit of the covenant, it was Mr Stuart’s evidence that although the New Fence can be seen from the adjoining property with the benefit of the covenant at 9 Kildrummie Court, due to the existence of fences, structures and trees he does not believe that the New Fence can be seen


from any of the other properties with the benefit of the covenant. Mr Stuart’s evidence was that he does not believe that the New Fence obstructs any views from 5 Kildrummie Court (Ms Kimberley’s property) and that he does not believe Ms Kimberley can see the New Fence from her property. It was also Mr Stuart’s evidence that he is not aware of any of the beneficiaries of the covenant making any complaint about the height of the Old Fence, or Old Hedge before public notice of the permit application to vary the covenant was given.8

Relevant legislation27 Because the covenant was created or registered before 25 June 1991, s

60(5) of the PE Act applies. It provides as follows:(5) The responsible authority must not grant a permit which allows the removal or variation of a restriction referred to in subsection (4) unless it is satisfied that—

(a) the owner of any land benefited by the restriction (other than an owner who, before or after the making of the application for the permit but not more than three months before its making, has consented in writing to the grant of the permit) will be unlikely to suffer any detriment of any kind (including any perceived detriment) as a consequence of the removal or variation of the restriction; and

(b) if that owner has objected to the grant of the permit, the objection is vexatious or not made in good faith.

28 It is clear that I am required to be satisfied of both limbs of s 60(5) before directing the grant of a permit for the variation of the covenant.

Vexatious or not made in good faith?29 Approaching the analysis starting with the second limb of the test at s

60(5), I consider myself prevented by s 60(5)(b) of the PE Act from granting a permit to vary the covenant, as I do not find that the beneficiaries’ objection in this case is vexatious or not made in good faith.

30 It was submitted by the permit applicant that the objection is vexatious or not made in good faith because it is about ‘amorphous’ things, and it is so clearly without merit. The applicant submitted that it strains credibility to assert that the New Fence will have a discernible amenity impact on the objector’s property, due to:

a. The distance between the objector’s property and the New Fence; and

8 Although Mr Stuart acknowledged that in a letter dated 19 October 1990 from Mr Carter (then then owner of 3444 Point Nepean Road (which does not have the benefit of the covenant) referred to the ti – tree hedge on the subject land being ‘over ten feet in height, which would appear to breach the covenant’.


b. The inability to see the New Fence from the objector’s property.

31 In addition, the applicant submitted that the beneficiaries of the covenant have acquiesced to the contraventions of the covenant, due to the existence of the following;

a. The Old Fence and the Old Hedge, which were in place on the southern boundary of the subject land in contravention of the covenant for around 40 years; and

b. A hedge which contravenes the covenant currently located on the adjoining land to the south at 3444 Point Nepean Road on the boundary with the subject land.

32 It was submitted on behalf of Ms Kimberley that there is no evidence that her objection was lodged to frustrate or annoy the applicant, and there is no proper basis to suggest that the objection is vexatious, untenable or not made in good faith. The objector opposes any attempt to water down the covenant as this would also erode the enjoyment of her property and the special character of the area.

33 The parties referred to a number of previous decisions of the Tribunal which have considered the second limb of s 60(5).9 Having referred to other authorities concerning the question of ‘vexatiousness’, Senior Member Wright in Giosis v Darebin CC (Red Dot) [2013] VCAT 825 found that ‘the notion of ‘vexatious’ imports intent to cause annoyance, which of course can often be inferred from the fact that the objection is ‘obviously untenable’ or ‘manifestly groundless’.’10

34 Whilst it could be argued that the objection in this case would have little prospect of success, if raised as a planning objection to a permit application to construct the New Fence (which it appears cannot be presently seen from Ms Kimberley’s property) there is no evidence that the objection is calculated with the intent to cause annoyance to the applicant (even though it may have had that effect).

35 Although it appears that Ms Kimberley cannot presently see the New Fence from her property,11 and she is not an adjoining land owner, I consider that this does not mean that that the objection is vexatious as that word has been regarded in decisions of the Tribunal.12 There is an aspect of the objection that has merit, is tenable and is sufficiently specific, being the concern about the impact of the variation of the covenant to allow the New Fence on the open, spacious environment on the subject land sought to be protected under the covenant, and what I take to be a reference to the character of the area. The reference in the

9 Including Giosis v Darebin CC (Red Dot) [2013] VCAT 825 and Dacre v Yarra Ranges SC [2015] VCAT 1453.

10 At paragraph [27].11 It is about 80 metres away ‘as the crow flies’.12 For example, Giosis v Darebin CC (Red Dot) [2013] VCAT 825 and Dacre v Yarra Ranges SC

[2015] VCAT 1453.


statement of grounds is to the ‘valuable sensitive coastal environment sought to be protected under the covenant’. I do not consider, in the absence of more, that the objection is wholly misconceived, or that it raises issues which are entirely unrelated to the variation of the covenant.

36 It was Mr Stuart’s evidence that his late father objected (along with other neighbours) to the height of the objector’s house when it was built, resulting in delays in construction. I am not persuaded that the objection made by Mr Stuart’s late father is a driving factor in the objection made by Ms Kimberley. Rather, I conclude that the objection has been made for the purpose of seeking to protect the requirements of the covenant regarding the fence height. There is no evidence to suggest that the real ground of Ms Kimberley’s objection was anything other than a genuine desire to maintain the benefit of the covenant.

37 I do not consider that there anything to indicate that the objection is deceptive or dishonest such that it could amount to an objection which is not made in good faith.

Submissions regarding whether there has been acquiescence to breaches of the covenant

38 Amongst other things, it was contended on behalf of the applicant that acquiescence by Ms Kimberly to the breach of the covenant with respect to the Old Hedge (which is was contended was higher than the New Fence) means that her objection to the proposed variation to allow the New Fence is sufficiently ‘fanciful’ to clothe the objection in vexatiousness within the meaning of s 60(5)(b) of the PE Act. Acquiescence is the principle that ‘assent to an infringement of rights, either express, or implied from conduct, will normally result in the loss of right to equitable relief.’13

39 I note that it was contended on behalf of Ms Kimberley that there has been no acquiescence to the breach of the covenant in relation to the construction of the New Fence.

40 I make no finding about whether or not Ms Kimberly acquiesced to the breach of the covenant with respect to the New Fence, the Old Fence or the Old Hedge.

41 Even if the Old Hedge was higher than the New Fence (and I make no finding about that), I consider that this does not clothe the objection with ‘vexatiousness’ as this term has been regarded by earlier decisions of the Tribunal14 in the sense of being a ‘manifestly groundless’

13 See Hill v Campaspe SC [2004] VCAT 1399 at paragraph [23].

14 Including Giosis v Darebin CC (Red Dot) [2013] VCAT 825 and Dacre v Yarra Ranges SC [2015] VCAT 1453.


objection. Nor do I consider it to be a ‘fanciful’ objection, as asserted on behalf of the applicant.

42 The impact of the New Fence on the amenity of the open, spacious environment which is sought to be protected by the covenant (particularly close to the cliff edge) is not necessarily the same as (or even less than) the impact of the Old Hedge, due to the likely differences between the Old Hedge and the New Fence. Noting that the Old Hedge no longer exists, I expect that there are differences in the visual impact of the Old Hedge and the New Fence, which result from differences in the form, structure and the constituent materials of the Old Hedge and the New Fence.

43 For these reasons, I do not consider that acquiescence by Ms Kimberley to the breach of the covenant with respect to the Old Hedge and, or the Old Fence (if that has occurred, and I make no findings about that) can be construed to mean that her objection (including her assertion that she will suffer detriment, including perceived detriment) is ‘fanciful’ or so ‘obviously untenable’ so as to amount to a vexatious abjection within the meaning of s 60(5).

44 For these reasons, I do not consider that Ms Kimberley’s objection should be excluded under s 60(5)(b) of the PE Act as I am not satisfied that it is vexatious, or not made in good faith.

No detriment to beneficiaries?45 With respect to s 60(5)(a) of the PE Act, I note that Mr Walker, the

owner of the adjoining property to the south (9 Kildrummie Court) consented in writing to the variation of the covenant to allow the New Fence.15 Because his written consent was provided not more than three months before permit application P16/2017 was made,16 Mr Walker is a beneficiary of the covenant who is excluded from consideration under s 60(5)(a) of the PE Act.

46 Despite my finding above leading to an order refusing the application, I have considered the application of s 60(5)(a) for completeness.

47 For an application to succeed, I am required to find that the proposal is unlikely to cause any detriment including a perceived detriment, and even minor detriments.17

48 Detriment does not rely on the establishment of a direct physical amenity impact. In a town planning context, it includes broader concepts of detriment, or non-physical amenity impacts, including

15 Under cover of a letter dated 10 August 2017 from Mr R Walker Ms N Neville at the Mornington Peninsula Shire Council.

16 The permit application was made on 23 December 2016.17 Dacre v Yarra Ranges SC [2015] VCAT 1453 at paragraph [12](f).


perceptions of neighbourhood character or ‘an appeal to aesthetic judgement.’18

49 It was contended on behalf of the applicant that the beneficiaries will not suffer any relevant detriment in terms of s 60(5) of the PE Act, and that it strains credibility to say that the New Fence will have a discernible amenity impact on Ms Kimberley’s property, due to the distance from the New Fence to Ms Kimberley’s property,19 and the inability to see the New Fence from her property. In support of these submissions the applicant contended that:

a. Whilst the covenant may protect views from the adjacent property to the north, the owner of that property (Mr Walker) has consented to the variation of the covenant;

b. There are buildings, fences and boundary hedges between the New Fence and Ms Kimberley’s property, and it is difficult to see how there is any detriment to her that is not fanciful, and any detriment that is asserted is less than perceived; and

c. In terms of the character of the area, the covenant does not prevent ‘tall things’ as there are fences and three hedges to the north of the subject land, all extending to the cliff edge, and the New Fence cannot be seen from any other properties with the benefit of the covenant (except Mr Walker’s property, and he has consented to the proposed covenant of the variation).

50 With respect to the submissions of the parties regarding the purpose of the covenant, I find that the relevant purpose of the covenant is to protect the amenity of the area by:

a. preserving the open spacious character of the coastal, cliff top setting in respect of the eastern portion of the subject land; and

b. retaining the eastern portion of the subject land as an open, spacious area, free from any man-made structures except for low fencing, and to protect views from benefiting properties to Port Phillip Bay and the foreshore.

51 I note that previous decisions of the Tribunal have found that even if no objections are received from owners of land benefited by the covenant, their interests must still be considered. The fact that benefiting owners have not objected does not impede the conclusion that they are unlikely to suffer detriment of any kind.20 As well as Ms Kimberley’s objection, I have taken into account the interests of benefiting owners who have not objected to the proposal (apart from Mr Walker’s property, as he has consented to the proposal). It appears that it is not presently possible to see the fence from any of the benefiting properties

18 Ibid at paragraph [12](g).19 About 80 metres ‘as the crow flies’.20 Dacre v Yarra Ranges SC [2015] VCAT 1453 at paragraph [12](c).


52 In my view, detriment in this case does not rely on the establishment of a direct physical impact of the New Fence on benefiting properties (excluding Mr Walker’s property). I consider the broader concept of detriment referred to in the Dacre decision21 is relevant in this case, including perceptions of the special character of the coastal cliff top setting. In my view, it is not necessary for the New Fence to be visible from the benefiting properties to constitute a detriment to amenity.22

53 I consider that the New Fence is quite prominent (particularly at the end sitting closest to the cliff edge) due to its form and height. In my mind, perceived detriment to 5 and 7 Kildrummie Court has at the least, the potential to arise as a result of the proposed variation, due to the prominence of the New Fence, and the adverse impact it has on the amenity of the cliff top area on the subject land. In my view, the adverse impact arises because the New Fence diminishes the quality of the open, spacious character of the cliff top setting which the covenant seeks to protect (largely at the eastern end of the New Fence, where it is closest to the cliff edge). I consider that this detriment is a possibility which is neither ‘fanciful nor remote’.23

54 I do not consider that perceived detriment has the potential to arise with respect to 3450 and 3448 Point Nepean Road because the benefit of the covenant extends only to a narrow strip on the southern boundary of 3450 Point Nepean Road, and to the eastern part of 3448 Point Nepean Road (which has no frontage to Port Phillip Bay).

55 I note that it was also submitted on behalf of the applicant that the proposed variation would be unlikely to cause any detriment of any kind to a beneficiary of the covenant (excluding Mr Walker) because:

a. the Old Hedge (now removed) was 3 metres high (which is higher than the New Fence); and

b. The hedge on the adjoining property to the south at 3444 Point Nepean Road is in breach of the restrictive covenant burdening that land.

56 I am not persuaded by these submissions, because I consider that there are likely24 to be differences between the New Fence and the Old Hedge (as I have already discussed), and also the hedge next door. These are likely to be differences in the constituent materials, height, and visual impact of the New Fence, when compared to the Old Hedge or the hedge next door.

21 Dacre v Yarra Ranges SC [2015] VCAT 1453 at paragraph [12](g).22 In this regard, see Hill v Campaspe SC (Red Dot) [2011] VCAT 949 at paragraph [132].23 As per Dacre v Yarra Ranges SC [2015] VCAT 1453 at paragraph [12](h).24 I use the word ‘likely’ because although I have considered Mr Stuart’s evidence about the height

of the Old Hedge, I have no other material (apart from three photos which show the height of parts of the Old Hedge at different times) upon which to form a conclusion about the height of the Old Hedge, which was removed in 2016.


57 The likely height of the Old Hedge (now non-existent), and the height of the hedge next door do not alter my conclusion that there is a possibility that the proposed variation would cause the beneficiaries referred to above to suffer perceived detriment, for the reasons already discussed.

58 For these reasons, I cannot be satisfied that the proposal is unlikely to cause any detriment (including a perceived detriment), to the beneficiaries of the covenant referred to above (excluding Mr Walker). As a result, s 60(5)(a) is not satisfied.

Conclusion regarding section 60(5)59 I am unable to grant a permit to vary the covenant because I am not

satisfied on the matters at s 60(5)(a) and (b) of the PE Act. An objection has been received from a beneficiary of the covenant, and I am not satisfied that it is vexatious or not made in good faith. I also cannot be satisfied that the beneficiaries of the covenant at 5 and 7 Kildrumme Court will be unlikely to suffer any detriment of any kind (including any perceived detriment) as a consequence of the variation of the covenant.

IF THE REQUIREMENTS OF S 60(5) ARE SATISFIED, SHOULD A PLANNING PERMIT BE GRANTED HAVING REGARD TO THE PROVISIONS OF CLAUSE 52.02 OF THE PLANNING SCHEME REGARDING THE VARIATION OF THE RESTRICTION?

60 The need to exercise the discretion under clause 52.02 of the scheme will arise if a permit is not prohibited under s 60(5) of the PE Act.

61 Having regard to my findings, it is not necessary for me to address the general discretion under clause 52.02, as I have found that the permit application to vary the covenant is barred by s 60(5).

WOULD THE FENCE REPRESENT AN ACCEPTABLE PLANNING OUTCOME?

62 Notwithstanding that I am not in a position to grant the permit for the New Fence,25 I provide a brief summary of my opinion in relation to the proposal, in the event that a different permit application is made to vary the covenant for a fence. Alternatively, the covenant may be varied by other means by way of an application to the Supreme Court under s 84 of the Property Law Act 1958, or the preparation of a planning scheme amendment, and a similar application may be lodged with the responsible authority.

25 See s 61(4) of the PE Act.


63 Because parts of the New Fence exceed 2 metres in height, under ESO2526 and DDO3,27 a planning permit is required to construct the New Fence.

64 The key issue in my view is whether the New Fence strikes an appropriate balance between the applicant’s desire for a fence with a height of between 1.5 and 2.2 metres (particularly where the fence is close to the cliff edge) and the relevant provisions of the scheme. These include the purposes and environmental objectives of the ESO25, which amongst other things, seek:

To identify areas where the development of land may be affected by environmental constraints;28

To protect and enhance the natural features, vegetation, ecological diversity, landscape quality, heritage values and recreation opportunities of the Port Phillip Bay coastal area and associated intertidal and marine habitats;29

To promote excellence in design of buildings, facilities and structures in the coastal area.30

65 The design objectives of the DDO3 include protecting ‘shared viewlines where reasonable and practical.’

66 I note that the part of the Old Fence that was closest to the cliff edge was (in the applicant’s own words) ‘a 17 metre section of timber and steel mesh fence, 1 metre in height’.31 This would have allowed the potential for views to the north over the fence from the adjoining property to the south. I accept that it is likely that the view to the north from the adjoining property to the south would have been impacted by the Old Hedge and the hedge next door at 3444 Point Nepean Road. However, the Old Hedge was removed, and the New Fence is higher than the 1 metre high part of the Old Fence. Parts of the New Fence appear to be at least as high as the hedge next door.

67 The application of ESO25 and DDO3 indicates that the subject land is an area where landscape factors require careful consideration, as the cliff top location is an area of particular landscape value. Putting aside the question of whether the proposed variation to the covenant is barred under s 60(5) of the PE Act, it is my view that although the use of brush panels with timber posts for the New Fence is appropriate, the New

26 A question was raised at the hearing about whether or not the permit exemption under clause 3.0 of the schedule to ESO25 applies for fencing on land which abuts the southerly or easterly alignment of Point Nepean Road. In any event, under clause 42.01-2 and clause 3.0 of the schedule to ESO25, a permit is required to construct a side fence unless it is 2 metres in height or less.

27 Under clause 43.02-2 and clause 2.0 of the schedule to DDO3 a permit is required to construct a side fence which is more than 2 metres in height.

28 Clause 42.01 of the scheme.29 Clause 2.0 of the schedule to ESO25.30 Ibid.31 This information was included with the material submitted with the permit application on 22

December 2016.


Fence is not an acceptable planning outcome, particularly where it is closest to the cliff edge. The New Fence reduces the potential for views to the north from the adjoining property to the south. The visual impact of the New Fence, due to its height where it sits closest to the cliff edge makes it a prominent feature, which diminishes the landscape qualities of the cliff top area.

68 I consider that a modified fence, which is appropriately reduced in height where it is closest to the cliff edge would represent an acceptable planning outcome, for which a permit should be granted. It would minimise the visual impact of the fence on the landscape near the cliff edge, and would assist to enhance the landscape quality of the cliff top setting. It would also assist with the protection of shared viewlines, particularly from the adjoining property to the south, noting that the height of the hedge next door is not fixed, and could change over time. A fence which is reduced in height where it is closest to the cliff edge would also reflect the gradual reduction in the height of the hedge on the northern boundary of the subject land as it approaches the edge of the cliff.

CONCLUSION69 For the reasons given above, the decision of the responsible authority is

affirmed. No permit is granted.

Juliette HallidayMember


VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL · Web viewMs Kimberley owns the land at 5 Kildrummie...

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