By Ethan Benedicto
An address in Berwick is open for subdivision, after the City of Casey lost a Victorian Civil and Administrative Tribunal hearing following the application.
Applicant Dilbar Singh has been granted a permit to construct two double-storey dwellings on 13 Carluke Close, following a small change to a restrictive covenant and protests from a neighbouring property.
The VCAT decision was granted on 27 May, allowing Singh to subdivide the 937 square-metre land into two lots, changing said restrictive covenant that initially only allowed one dwelling per lot.
The City of Casey refused the application on one key legal ground, which was based on Section 60(5) of the Planning and Environment Act 1987.
Under this legal threshold, the council argued that a permit to remove or vary must not be granted unless they are satisfied that no beneficiary of the covenant would suffer any kind of detriment, and if any beneficiary objects, it must be causing frustration, worry, or not in good faith.
Building on this, Casey put forward that a beneficiary – a resident on 28 Willslie Crescent, roughly 160 metres away – objected to the application, and despite not being adjacent to the address, argued that their status as a beneficiary of the covenant gives them valid grounds to object.
On the same note, Casey also argued and cited a previous case, Edwards v Maroondah CC [2011] VCAT 1316, which ruled that geographical distance alone does not reduce the weight of a valid objection.
The objector added that they moved into their current residence due to the fact that it was a single-dwelling area, which in turn protects the area’s character.
Casey then emphasised that the set covenant’s purpose is to protect the low-density, green suburban character of the estate.
To back this, the council cited another case, Hill v Campaspe SC [2011] VCAT 949, where VCAT considered general amenity impacts – not just immediate neighbours – as legitimate grounds under Section 60(5).
The objector also highlighted that they feared the approval of the application would then create a precedent or create a trend of covenant removals.
Council corroborated this claim, adding that it would result in cumulative impacts that could, in time, erode the neighbourhood’s character.
Despite these major points raised by Casey, VCAT ruled that the applicant’s proposed variation of the restrictive covenant would not result in any detriment, which includes perceived detriment, to any of the beneficiaries.
When it came to neighbourhood character, VCAT ruled that the review site was unusually large at 937 square metres, compared to the other nearby dwellings at 600 to 700 square metres; this made it suitable for two dwellings without disrupting the character.
Likewise, VCAT also noted that there were nearby properties that had rooming houses, two-dwelling developments and covenant variations, such as on 3 Carluke Close.
When it came to the objector’s concern regarding setting a precedent, VCAT ruled that planning decisions do not set binding precedents, and that each application is to be assessed on its own merits.
On the topic of the legitimacy of a single resident being the sole objector, being legitimate grounds, VCAT agreed with the council, but doubled down that one objector can block the permit only if their objection has merit.
VCAT ruled that the particular objection was found to be remote and speculative, and was based on generalised fears.
The ruling also added that the objector lives 165 metres away, and would not even pass the site regularly due to its cul-de-sac location.
The council also claimed that the objector’s concerns around increased traffic and an increased strain on local schools due to rising enrolments were valid and could contribute to a broader picture of amenity impacts.
On the other end, VCAT ruled that one extra dwelling adds at most one car, in peak hour, and that the council did not provide evidence that traffic will worsen; likewise, school enrolment impacts from one additional household were deemed speculative and unsupported.
The objector also did not attend the tribunal, did not file a Statement of Grounds, and had a similar record of non-participation in past planning reviews, such as Nguyen v Brimbank CC.
Ultimately, VCAT deemed the council’s and objector’s arguments against the application to be negligible, finding no credible detriment that would arise from the covenant’s variation or the two-dwelling development.
