For covenants created on or after 25 June 1991, applicants are often tempted to pursue the modification of covenants through the Planning and Environment Act permit application process on the basis that it is purportedly cheaper than applying through the Supreme Court.

However, this can be a false economy when considering that each beneficiary needs to be notified via the Planning and Environment Act 1987 process and depending on the size of the subdivision that can be expensive. I have had clients complaining that the process of notice can cost $3,000 for small to medium subdivisions to $10,000 for larger subdivisions.

Moreover, the obligations for the production of evidence are no lower in the Tribunal and so the cost of engaging an expert may be greater given that the expert will invariably be required to appear to give evidence at VCAT, whereas a judicial registrar or Associate Judge will typically be content to consider the evidence on the papers.

And that hints at perhaps the critical distinction—that cases in VCAT are more often than not opposed by beneficiaries who bear few if any cost consequences from appearing to oppose an application to modify a restrictive covenant, whereas in the Supreme Court applications to modify restrictive covenants are more often than not, unopposed.

Moreover, Council as the responsible authority will invariably be a party to an application for planning permission, whereas they will only rarely be involved in a section 84 application, for instance, if Council owns nearby parkland that enjoys the benefit of the covenant sought to be modified. Taking that wildcard out the equation alone is of profound assistance to applicants.

The test in section 60(2) of the Planning and Environment Act can also be more narrowly applied than section 84 in the Property Law Act. By way of example, in Ambrosio v Hume CC [2019] VCAT 2049 the Tribunal rejected an application for an additional dwelling at 30 Eucalyptus Ct, Mickleham in the Mt Ridley Estate, whereas the Supreme Court has since approved seven somewhat similar applications in the same precinct.