A client recently sought our advice in relation to a parcel of land that the client had purchased in one of the older, more treed and generally quite salubrious sections of the Peninsula, which was originally subdivided in the 1920’s. The client had sought a planning permit in relation to development of the lot only to find that the Council was not prepared to grant the permit unless it was provided with definitive legal advice in relation to a covenant placed on the land in 1928.
The primary purpose of the covenant was to require that on each subdivided lot only one dwelling could be built, effectively what we now call “a single dwelling covenant”. Lost to all but the Council in the fine print was a further requirement that no building could be commenced to be erected or reconstructed upon the land without first obtaining the consent and approval in writing of a “Mr John Edmond Taylor of 171 City Road, South Melbourne, Timber Merchant.” This was the part of the covenant that Council had concern about.
Given that the covenant was placed on the land in 1928, the said Mr Taylor (assuming he was at least 18 at the time the covenant was placed) would now be at least 110 years old if he was still alive. For this reason, we assumed Mr Taylor was deceased and that obtaining his permission would be impossible.
We set about considering how one might approach achieving compliance with the covenant given that on its face compliance was impossible.
In the State of Victoria there are four main ways of amending a covenant:
- by obtaining a planning permit (Planning and Environment Act) authorising the removal of the covenant or amendment to the wording of the covenant
- by obtaining orders from the Supreme Court of Victoria pursuant to Section 84 of the Property Law Act to the effect that the covenant was removed or amended
- by seeking a Planning Scheme Amendment, which effectively requires the support of the local Council, and going through the planning panels process to obtain an amendment to the broader planning scheme which has the effect of removing or varying the covenant
- by obtaining the permission of all beneficiaries to the covenant who are usually the owners of the other lots within the subdivision.
A difficulty arises if you choose to use methods (1), (2) or (4) above, effectively all lots having the benefit of the covenant must be identified and/or given notice of your application. The client in the present case had one lot on a subdivision of over 700 lots. It was estimated that the cost of the title searches required to identify the lots benefitting from the covenant would be over $15,000.00.
It was fortunate then that the client’s mother, reading a historical text of the history of the Mornington Peninsula came across Mr Taylor’s name and subsequently realised that the Council had previously amended the planning scheme (see method 3 above) to remove the reference to Mr Taylor’s permission being required. The Council had overlooked this in their requests for further information from the client.
The moral of the story is that whilst there is more than one way to skin a cat there is also more than one way to remove or vary a covenant, but first make sure the covenant has not already been removed or varied.
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