VCAT and removal of restrictive covenants

The removal of restrictive covenants is a matter approached with reasonable caution. In the recent case of Tran v Brimbank CC [2011] VCAT 1560, the Tribunal has considered the question of permitting the removal of a restrictive covenant in a suburban subdivision. In the present case the land was encumbered by a restrictive covenant that prevented the erection of a second dwelling on the land.

In allowing the removal of the restriction the Tribunal took into account matters including the following

  • the only objectors to the removal (who benefited from the covenant) lived  a considerable distance away from the subject land;
  • other recent decisions of the Tribunal which had allowed the removal of covenants;
  • another local property had previously had a similar restrictive covenant removed without objection;
  • the objection to the removal was vexatious in all the circumstances of this case.

VCAT’s power to amend planning permits

Section 87A of the Planning and Environment Act 1987 gives VCAT the power to amend or cancel planning permits issued at its direction. In Cbus Property Pty Ltd v Bayside CC [2011] VCAT 1529 VCAT exercised this power.

The case is interesting because it raises issues discussed in The King David School v Stonnington CC [2011] VCAT 520, in particular, the approach that the VCAT should take when considering an application to amend a permit.

In Cbus Property Pty Ltd the Tribunal acknowledges the “cautious approach” identified in The King David School proceeding but distinguishes the matter on the facts. The relevant distinguishing features include the following:

  • “this is a case where more substantive amendments to a permit facilitate a reasonable change in the development of the land, and,
  • it is not a case where the application seeks to undertake a de facto review of the original Tribunal decision in order to seek a more favourable outcome”. [10]

High Court considers removal of restrictive covenant

In Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2011] HCA 27, the Court considered a NSW planning ordinance which had the intended effect of suspending a restrictive covenant that existed in favour of the Appellant. The removal of the covenant occurred by way of an amendment to a Schedule to the planning ordinance. The Court identified the following issues of general application:

“This dispute illustrates several points of general significance. It may be true to say that State planning legislation “is concerned with land as a topographical entity, indifferently to its proprietorship”, and that this may entail interference with private property rights. But legislation which operates to mitigate the extent of that interference, by prescription of a particular manner and form for the making of planning instruments, should be read in light of that purpose of mitigating the derogation of private rights”. (footnotes omitted)

In its reasons, the Court confirms that proprietary rights cannot be interfered with unless there has been strict compliance with statute. In this case the Appellant argued that the amendment to the Schedule had not been approved by the Governor in Council as required by the New South Wales Environment Planning and Assessment Act 1979. The effect of the case is to confirm the existence of a restrictive covenant in favour of the Appellant and prevent the expansion of a private hospital.