Rethinking the usefulness of the Planning and Environment Act process

Reliance on cl52.02 of the relevant Planning Scheme (often referred to as the Planning and Environment Act (Act) process, as distinct from the Property Law Act process) for the removal or modification of restrictive covenants has a deservedly poor reputation for applicants, by reason of the conservative construction and application of s60 of the Act. As described by DP Gibson of the Victorian Civil and Administrative Tribunal in Hill v Campaspe SC [2011] VCAT 949, s60(5), at least, is “a high barrier that prevents a large proportion of proposals.”

However, a decision was handed down by VCAT last year that might cause applicants for the removal or modification of covenants to reconsider whether the Planning and Environment Act process remains an option in some cases involving covenants not fairly described as obsolete.

The case was King v Stonnington CC & Anor [2013] VCAT 939. It is notable for the fact that the application to vary a single dwelling covenant to allow the construction of a dual occupancy development was advertised to no fewer than 130 persons [see para 8]. And despite this, no beneficiary objected to the proposal to modify the covenant.

This case serves to illustrate that opposition can be predicted to a certain degree by the demographics of any given area. King v Stonnington concerned land in Malvern East–the area in which Chadstone shopping centre can be found. If one was making a similar application in Grange Road, Toorak, such a muted response might not be expected.

Matthew Townsend
Owen Dixon Chambers
http://www.vicbar.com.au/profile?3183
townsend@vicbar.com.au (04) 1122 0277
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