More Covenants Varied

Property Law: 23 March 2019

Aitken Partners has successfully applied for the variation of two single-dwelling restrictive covenants affecting a double-block in Altona.  As a result of an Order of the Supreme Court made on 4 November, the client is now free to apply for a planning permit to erect up to a total of 6 town houses.

Aitken Partners was able to track down a number of breaches, variations and exceptions to similar covenants affecting land in the area and similar developments nearby. These were relied on as evidence that the variation sought would not change the 'feel' of the neighbourhood or adversely affect any person entitled to the benefit of the covenant.

In September, Aitken Partners achieved a variation of a single dwelling covenant over a property in Berwick so as to allow 3 townhouses to be built.  Our investigations revealed that very few neighbours had the benefit of the covenant whereas in a previous application for nearby land, it had been assumed that all neighbours were entitled to oppose.

It is always more difficult when neighbours oppose an application.  In June, following a successful mediation, every neighbour of three adjoining properties in Lysterfield agreed to a modified proposal put forward on behalf of Aitken Partners' clients. The covenants over the three properties were varied by the Court so as to allow a second dwelling to be built on each.

In each instance, extensive historical title searches, personal inspections of the neighbourhood, knowledge of town planning controls and procedures, coupled with experience in covenants cases, helped achieve results that are generally difficult to obtain.