Anto v Pegoraro - [2020] VSC 76

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROPERTY LIST

S ECI 2018 02364

ASHIN ANTO	First Plaintiff
ANITA PAUL	Second Plaintiff
v
ROBERT PEGORARO AND OTHERS (according to the schedule attached)	Defendants

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2019; further submissions November 2019 and February 2020
DATE OF JUDGMENT:	26 February 2020
CASE MAY BE CITED AS:	Anto & Anor v Pegoraro & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 76

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REAL PROPERTY – Restrictive covenant – Application to modify single dwelling covenant to allow two dwellings – Whether modification would substantially injure the beneficiaries of the restriction – Substantial injury would not be occasioned by way of direct impact on amenity – Whether the modification would occasion substantial injury by way of setting a precedent – Discussion of the principles to apply – Earlier more intense development considered and distinguished – Application refused – Property Law Act 1958 (Vic) s 84(1)(c).

REAL PROPERTY – Restrictive covenant – Application to remove materials restriction – Necessity for evidence – Application refused.

REAL PROPERTY – Restrictive covenant – Application to remove minimum size requirement – Removal of the restriction not required for the plans before the Court – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs	Mr D P Lloyd	Aughtersons Solicitors
The defendants in person

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Law........................................................................................................................................................ 2

Facts...................................................................................................................................................... 4

Subdivision and covenant............................................................................................................ 4
Beneficiaries and objectors........................................................................................................... 7
Description of the Subdivision.................................................................................................. 10
Observations on a view.............................................................................................................. 12

Proposal.............................................................................................................................................. 13

Defendants’ case............................................................................................................................... 15

Plaintiffs’ submissions................................................................................................................... 16

Consideration.................................................................................................................................... 18

Direct amenity impact................................................................................................................ 18
Privacy and light................................................................................................................ 18
Character of the area......................................................................................................... 20
Effects of increased density.............................................................................................. 20
Effect on value.................................................................................................................... 21
Traffic and parking............................................................................................................ 21

Indirect effect: precedent............................................................................................................ 25
Conclusion on modification of single dwelling restriction................................................... 38
Materials restriction.................................................................................................................... 38
Size requirement.......................................................................................................................... 40

Conclusion and orders.................................................................................................................... 41

HER HONOUR:

Introduction

The plaintiffs seek to modify a restrictive covenant (‘the Covenant’) burdening their land at 37 Delbridge Drive, Sydenham so as to permit them to build a further dwelling on the land in addition to the single storey dwelling currently erected on it. Their land is on the corner of Delbridge Drive, and Bryson Court, Sydenham. The proposed new two storey dwelling would front onto Bryson Court, utilising an existing cross over to Bryson Court at the rear of the land. The plaintiffs also seek to remove a restriction in the covenant as to the minimum size of the dwelling, and a requirement that 85% of the external walls of the dwelling, including any garage, carport or other building which fronts onto the street, be constructed of brick, brick veneer or stone. The plaintiffs propose to move into the new dwelling with their children, and either let or sell the original dwelling on their land.

The defendants are the registered proprietors of land that benefits from the restrictions. They are two couples who own and reside on land fronting onto Bryson Court. The land owned by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anto v Pegoraro

Details

AGLC: Anto v Pegoraro [2020] VSC 76
Case: [2020] VSC 76
Decision Date: 26 February 2020

CaseChat Overview and Summary

Anto sought leave to modify restrictive covenants on a property owned by Pegoraro to allow for two dwellings on the land, instead of the current single dwelling. The application was also to remove a materials restriction and a minimum size requirement for any new dwelling. The dispute was heard in the Supreme Court of Victoria. The primary issue for the Court was whether the proposed modifications to the restrictive covenants would cause substantial injury to the beneficiaries of the restriction. The Court also had to determine whether there was sufficient evidence to support the removal of the materials restriction and the minimum size requirement.

In considering the modification to the covenant permitting two dwellings, the Court examined whether the proposed change would cause substantial injury to the beneficiaries of the restriction. The Court determined that while the proposed development might not directly impact on the amenity of neighbouring properties, it could set a precedent for future developments that might substantially injure the beneficiaries. The Court distinguished this case from an earlier decision where a more intense development was permitted, finding that the principles applied in the earlier case did not justify the proposed modification in this instance. The Court also found that there was insufficient evidence to support the removal of the materials restriction and that the removal of the minimum size requirement was not necessary for the plans before the Court. The application was ultimately refused.

The Court held that the proposed modifications to the restrictive covenants would occasion substantial injury to the beneficiaries by way of setting a precedent for future developments. The Court also found that there was no sufficient evidence to support the removal of the materials restriction, and that the removal of the minimum size requirement was not necessary for the plans before the Court. The application was therefore refused in its entirety.

No orders were made as the application was refused.

Orders