Tribunal blasts council for not processing covenant application correctly

In approving the modification of a restrictive covenant over the objections of beneficiaries, a senior division of the Tribunal has criticized the processing of the application by the Responsible Authority. Senior Member Martin stated in Berecz v Casey CC [2021] VCAT 1336:

19 After considering Council’s written submission and the oral submissions made to us by Council at the hearing (together with the relevant text in the Delegate Report), our impression is that at all of these stages, there has been a fundamental lack of proper understanding and application of the statutory provisions and caselaw for this type of ‘variation of restrictive covenant’ disputed permit application. As we said at the hearing, for VCAT planning merits hearings to be workable and for there to be public confidence in the Victorian planning system, it is essential that this type of permit application is competently processed by the relevant Council.

Council’s error was to assess the application to modify the covenant pursuant to section 60(5) of the Planning and Environment Act 1987, rather than the less restrictive criteria under section 60(2) of the Act given the restriction was created after 25 June 1991.

The decision also provides a useful summary of the relevant criteria for planning permit applications to modify post 1991 restrictive covenants.