Originating motion in support of an application to modify or remove a restrictive covenant
If you are yet to decide which process to follow to modify or remove a restrictive covenant, you should read this article first. If you have already elected to pursue the Property Law Act 1958 or Supreme Court process, then the following discussion is an overview, along with some precedents you may wish to use. These are updated regularly.
To begin, when applying to remove or modify a covenant in the Supreme Court, an Originating Motion will need to be prepared, setting out the relief sought. Most applications will only need a simple Originating Motion such as this or this. More complex examples that incorporate applications for declarations can be found here and here.
In determining how to phrase the modification sought, you should seek the minimum change necessary to achieve your objectives. That is, if you are after a dual occupancy, seek to replace ‘one dwelling’ with ‘two dwellings’ or draft a variation to allow a particular form of development. Although a practice has been to vary covenants with the addition of the following words “… but this covenant will not prohibit the construction of any development generally in accordance with the development described in the plans prepared by ABC Architects dated 1 July 2016 numbered A00 to A30”, this technique known as the ‘proviso’ has recently fallen out of favour because it means attaching plans to an instrument of transfer that may sit in the Office of Titles for decades to come. For this reason, orders that incorporate a simple building envelope are preferred. The broader point, however, is that if you ask for removal of the covenant and you don’t actually need it, you may attract unwarranted opposition. Moreover the Court is increasingly unwilling to allow the complete removal of anything but entirely obsolete covenants.
No summons is required at this time given that the first hearing will ordinarily be ex parte.
While the schedules of parties may have been removed from the following examples, such a schedule is ordinarily not added until after the first return of the application, for the identity of the Defendants is not yet likely to be known.
Overarching Obligations Certification and Proper Basis Certification should also be provided.
The Court will also want an application form completed.
A helpful Guide for Practitioners has also been prepared by the Supreme Court. This provides a checklist for applications and some draft precedents. This version has been updated by the Court in December 2016, but to be prudent, download the latest version from the Supreme Court website.
Affidavit in support of and in opposition to an application to remove a single dwelling covenant
The Originating Motion should be accompanied by an affidavit in support by either a solicitor or the plaintiff. An additional example of a plaintiff’s affidavit can be found here. A comprehensive draft in Word by a solicitor can be found here. A potentially significant tactical question arises here, given that authors of affidavits ordinarily need to be made available for cross examination, and there may be reasons why you might not want to call your client to give evidence.
Substantively, the critical task is to provide the Court with reliable information about the covenant, its purpose, who enjoys the benefit and the burden of it and the essential circumstances of the application. Ensure you have an up-to-date certificate of title for the land and that the application is made on behalf of that party or those parties. If the name or names are not the same, provide an explanation with any authorities to act on affidavit. If the applicant is a conditional purchaser of land, exhibit the contract of sale.
If a particular form of development is sought to be achieved, this should be included in this affidavit or in the report of the planner, discussed below. If relying on a map showing the location of beneficiaries, ensure the map is legible and accurately reflects the location of beneficiaries.
The quickest and most cost-effective means of establishing who has the benefit and the burden of the relevant covenant is to call a professional title searching service such as Feigl and Newell on (03) 9629 3011. Dinah Newell should be able to provide you with a colour-coded cadastral plan such as this. However, you should double-check any advice you receive to identify transcription or other errors. Mistakes made at this point of the process can be expensive to fix later on.
Evidence in support and in opposition to the modification of a covenant
Once you have the above information, you can provide it to a town planner for the preparation of a planning report. Two further examples can be found here and here. This version was in support of an application to modify a covenant restricting the height of a dwelling and was praised by the Court for its clarity. A letter instructing a town planner in a s84 application can be found here. If you want the names of planners to prepare evidence in support of (or against) an application to modify or remove a covenant, find someone who has given evidence in a contested s84 application. You can look through Supreme Court cases in relation to restrictive covenants here. Unfortunately, all too often, planners approach the task as if it were a common or garden planning application in VCAT relying on principles of public policy rather than analysing impacts on proprietary rights. This evidence will almost certainly be useless.
A planning report is ordinarily sufficient substantive evidence in support of an application to modify or remove a covenant provided it covers the key issues raised in the application, for instance, addressing any injury that might be said to be substantial under s84(1)(c) of the Property Law Act 1958.
Resist the temptation to run a case under the three or four different limbs in s84(1). Ordinarily, s84(1)(c) provides the broadest scope for discretion and is the only ground required. Adopting a shot-gun approach to your application just generates unnecessary work for everyone and in many cases grounds relating to s84(1)(a) (obsolescence and reasonable user) are abandoned at trial when the applicant belatedly realises how difficult they are to establish.
A planning report should include photographs of the neighbourhood so the Court can gain a reasonably clear understanding of the context in which the application is being made.
A good planning report will also identify land within the parent title that has been varied since the time of the original subdivision, whether this is by order of the Court, planning permission or simply a breach that has gone unchallenged. Evidence demonstrating how that change has occurred, should be annexed to the planning report when available.
Applicants are sometimes keen to lodge the application without planning evidence to save costs or time, but this risks the application being dismissed for being improperly supported. Certainly, the planning evidence should be before the Court at or before the first return of the application.
In some cases, lay evidence may be sufficient, at least in opposition to a modification or removal application. For instance, in Gardencity v Grech, the defendants were successful despite the absence of any expert evidence, for the Court found the plaintiff had failed to prove the absence of substantial injury. Evidence from the defendants in that case can be found here, here and here. An example of an expert report in support of an application to oppose a modification can be found here.
For a separate discussion about what to include in an objection, look here.
The first return of the application
At the first hearing of an application, which is usually done ex parte, the Court is likely to make further orders, similar to the following for a sign to be placed on the land and for direct notice to be given to the closest beneficiaries. This raises a further tactical question for applicants for it may be prudent to suggest to the Court that all beneficiaries be notified directly rather risk attracting the attention of non-beneficiaries via a sign on the land.
On the other hand, the Court has been known to be content with simply a sign on the land and no direct notification if there are no nearby beneficiaries.
In recent times, the Court has directed applicants to notify the beneficiary at the address indicated on title and at the street address, if different.
As always, practitioners should attend the Court with draft orders, preferably forwarded to the Court a few days beforehand. A further example is here. The normal standards expected of practitioners in ex parte applications apply, and you should disclose to the Court any necessary countervailing facts even if they are not helpful to your case. For instance, if your client is running a simultaneous application to modify a covenant elsewhere (which isn’t a good idea), the Court will want to know about it.
The second return–if the application is opposed
Once advertising has been carried out, an affidavit should be prepared that describes the advertising process undertaken, the nature of responses received and whether any beneficiaries objected. This is a short example and a more comprehensive example. Leave sufficient time to complete this as it may be time consuming. In answering queries from third parties, including beneficiaries, avoid giving advice about who has the benefit of the covenant. Inquirers need to make their own investigations about their entitlement to participate in the proceedings and the answer is not always clear. Record details of all phone calls and emails as a summary should also be included in the affidavit of compliance.
The Court may then make orders providing for the further provision of evidence and the listing of the matter for hearing. Two examples can be found here and here. Once again, the schedules of parties may have been removed.
Given the multiplicity of parties and their often divergent views, cases such as this are ordinarily not set down for mediation, although negotiation often occurs at the first return of the application and further negotiations can always happen informally.
The second return–if the application is not opposed
If no person seeks to become a Defendant, draft orders should be provided to the Court along with an affidavit to that effect (see examples above). Try to get the papers to the court three or four days in advance of the directions hearing so that the judge has time to read them before the hearing. Two examples can be found here and here.
Significantly, you may find that despite the absence of any defendants, you may still need to make out your argument for modification on the basis of the evidence provided. For instance, in Re Jensen, and Re: Morihovitis the Court refused relief despite the absence of any objectors.
A written outline of argument setting out why the variation or removal of the covenant should be provided to the Court, preferably in advance of the hearing. Two examples can be found here and here.
Submissions in support and in opposition to application to modify a single dwelling covenant
If the matter runs to a contested hearing, you will need to prepare a more comprehensive outline of argument. Submissions in support of a modification application can be found here: from Wong v McConville (opening); Wong (closing) and Re: Milbex. Submissions in opposition to a modification application can be found here from Re Pivotel; Suhr v Michelmore; and Prowse v Johnstone; and Re: Morrison.
To improve your client’s costs position in the litigation, a Calderbank letter or offer of compromise may well be appropriate to disturb the defendants’ presumption that their costs will be reimbursed by the Plaintiff at the conclusion of the proceedings, irrespective of the outcome. A Calderbank letter needs to be drafted with precision and according to established principles if it is to be effective. Examples can be provided upon request.
Needless to say, all applications are different and great care should be taken to ensure that the relevant matters are placed before the Court.
Owen Dixon Chambers
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