Covenant Removal More Difficult

Property Law: 23 March 2019

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:

1. 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,
2. 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
3. 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.