Covenant Removal More Difficult
The recent decision of VCAT in Hill v Campaspe Shire Council will make it more difficult to remove or modify a restrictive covenant through the planning process. Aitken Partners property lawyer Rob Bradley says In that case, Deputy President Gibson held that:
- if an application is made under clause 52.02 of the Planning Scheme for a planning permit to remove or vary a covenant, objections can be lodged by
- persons who have the benefit of the covenant,
- neighbours who do not have the benefit, and
- occupiers of benefitted land,
- if a person who has the benefit of a covenant believes that its removal will reduce property values, that can be sufficient “perceived detriment” to refuse an application for a permit to remove the covenant (even though you cannot object to any other permit application on the ground that it will reduce property values), and
- even if the grant of a permit is not precluded under s.60 (5)of the Planning and Environment Act, the Tribunal has a further general planning discretion to refuse to grant the application.
None of these findings apply to applications made to the Supreme Court under s.84 of the Property Law Act – which even before this VCAT decision, was normally a better means of seeking to remove or vary a covenant.