The Supreme Court of Victoria changes the way applications to modify or remove a restrictive covenant are to be advertised

The practice of the Supreme Court is apparently now to require a sign on the land for most applications to modify or remove a restrictive covenant pursuant to s84 of the Property Law Act 1958, along with a letter giving direct notice of the application to nearby beneficiaries (see example of advertising orders, attached).

A sign on the land giving notice of use and development proposals has long been used in the planning jurisdiction by reason of s52(2)(d) in the Planning and Environment Act 1987 expressly contemplating this form of notice.

Historically, orders for the advertising of s84 applications were made by requiring the publication of a notice in The Age and a newspaper circulating generally in the area. However, with fewer people buying print newspapers and fewer still reading the public notice sections of those papers, there has long been a question as to this requirement’s effectiveness.

It remains to be seen what this exposure to foot traffic will mean to the number and quality of objections by beneficiaries.

However, applications to modify or remove a covenant pursuant to the Planning and Environment Act 1987 will still require both a sign on the land and a notice in the newspaper by reason of section 52(1AA):

(1AA)  If an application is made for a permit to remove or vary a registered restrictive covenant or for a permit which would authorise anything which would result in a breach of a registered restrictive covenant, then unless the responsible authority requires the applicant to give notice, the responsible authority must give notice of the application in a prescribed form—

                         (a)  by placing a sign on the land which is the subject of the application; and

                         (b)  by publishing a notice in a newspaper generally circulating in the area in which that land is situated. [Emphasis added]

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