A restrictive covenant is an agreement restricting the way a land owner can use his or her land. Restrictive covenants are usually used as a way to regulate land use and their purpose is aimed at preserving the value, character and amenity of the land.
Examples of restrictions often included in restrictive covenants are: restrictions on the number of dwellings, limiting dwellings to a single storey, preventing the construction of front fences, and restricting the building materials used (eg use of only new materials, or the use of only brick/brick veneer/stone).
Careful consideration of the wording of the covenant and of the land benefiting from the covenant is essential in deciding whether a proposed development or land use would in fact breach the covenant in question. This analysis also helps to inform the approach to be adopted in an application to remove or modify a covenant, and indeed whether such an application is required at all.
Success is usually more likely in an application to vary a restrictive covenant than to remove a covenant altogether. The provision of plans for the proposal development or land use may also increase the likelihood of success for a variety of reasons, including appeasing fears of possible objectors as to future developments or land use.
An application to modify or remove a restrictive covenant can be made pursuant to section 60 of the Planning and Environment Act 1987 and such applications are made to the applicable local Council by submitting a planning application. If applications made to Council fail the application can appeal Council’s decision to VCAT.
An application can also be made to VCAT for a declaration as to the effect and meaning of a covenant. An application to modify or remove a restrictive covenant can also be made pursuant to section 84(1) of the Property Law Act 1958 to the Supreme Court.
The test applied pursuant to the s60 of the Planning and Environment Act is more onerous than the test to be applied pursuant to s84(1) of the Property Law Act.
To discuss your particular circumstances please contact Fleur Craig of Armour-Craig Legal on (03) 5636 4986.