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.

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