The Supreme Court has allowed the variation of a restrictive covenant in Lysterfield notwithstanding that the impacts of a new dwelling built in breach of the restriction would be “intrusive and oppressive.”

The Court found that the beneficiaries’ failure to act decisively when visited with the scale of the breach of the covenant was inexplicable.

“207 Even more baffling was the Perrys’ failure to make any further protest, or take any further action once they returned from Darwin in late September 2024. By this time, that the new dwelling breached the height restriction was unmistakeable. No further information was required for them to reach that conclusion. The roof sheeting had been installed, such that what was observed during the course of the view was visible to anyone from sometime in August 2024, and by the Perrys themselves from 29 September 2024. The construction of the new dwelling was advancing at some pace. But the Perrys took no steps to halt the construction of the new dwelling until five months after their return from Darwin.”

The Court found that this conduct amounted to acquiescence for the purposes of s84(1)(b) of the Property Law Act 1958 (Vic) and agreed to modify the covenant to allow the new dwelling and its pitched roof notwithstanding that that new dwelling would substantially impair the views from the Perrys’ living/dining room.

Before and after photos are at pages 4 and 14 in Jayasinghe v Perry [2025] VSC 751, below: