The Tribunal answered the preliminary question of law in favour of the respondent permit applicant and the responsible authority, finding that the grant of a planning permit for use and development of a place of assembly would not breach the registered restrictive covenant and therefore s 61(4) of the PE Act did not require refusal. The covenant's operative words — 'will not erect build or construct nor allow to remain standing … any building other than one dwelling house together with fences and outbuildings' — were held to restrict only the physical development of the land, not its use, following the approach in Panayiotou v Moonee Valley City Council [2003] VCAT 1279 and Saxena v Manningham CC [2003] VCAT 1837. The Tribunal distinguished Prowse v Johnston [2012] VSC 4 on the basis of different covenant wording and noted that the Supreme Court's comments in that case were obiter. The question of whether the proposed use was properly characterised as 'Place of assembly' or 'Office' was left open for the merits hearing.
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