Regular readers would have seen our recent four part article looking in detail at Restrictive Covenants and the methods available to have them removed in Victoria.
A recent VCAT decision will substantially impact the ability of the Tribunal to grant approval for the removal or variation of restrictive covenants as part of the planning permit application process, discussed in our previous article.
In Tsourounakis v Hepburn SC (2009) VCAT 554, the tribunal reviewed a decision to refuse a planning permit which sought the variation of a restrictive covenant to allow for the construction of an additional dwelling on the lot. The tribunal affirmed Council’s decision and refused to grant the permit.
In its determination, unlike a number of previous cases, the Tribunal noted that planning considerations such as the subject site’s proximity to shops and community facilities, which supported the proposed increase in dwelling density on the land, were not relevant. In their submissions both sides relied heavily on arguments relating to the planning merits of the proposed variation of the covenant. However the Tribunal considered that the case did not turn on the planning merits of the proposal.
Instead the Tribunal noted that restrictive covenants are part of private property law and not public planning law. The rights granted under a restrictive covenant apply to the owner of the land which had the benefit of the covenant. The burden of the covenant in this case applied to the land owner of the review site. Referring to the history of the relevant Section of the Act the Tribunal concluded that the only relevant matters were the tests contained in Section 60(5) of the Planning and Environment Act which stipulate that the responsible authority has to be satisfied of two things:
- The beneficiaries were unlikely to suffer any detriment as a result of the covenant variation
- The objections received from the beneficiaries were made in good faith
The Tribunal in its assessment of the application did not take into consideration the planning merits of the proposed development. Having come to the conclusion that the objections made were made in good faith; and that the beneficiaries were not unlikely to suffer any detriment the tribunal affirmed Council’s decision to refuse a permit.
This position makes legal sense but goes against the grain of previous VCAT decisions. It will alter the advice Clause:1 gives our clients when considering which method of removing/varying a covenant is most suited in any given circumstance.
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Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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