Beman Pty Ltd v Boroondara City Council

Beman Pty Ltd sought to remove a covenant registered on their property title, which mandated the use of specific building materials. The dispute arose when the applicant applied for a permit to allow the removal of the covenant, but the Victorian Civil and Administrative Tribunal (VCAT) ordered a permit be issued that varied but did not remove the covenant. Beman sought leave to appeal VCAT’s decision, arguing that the covenant was not enforceable and did not sufficiently identify the land to be benefited. The Supreme Court of Victoria was tasked with deciding these legal issues.

The central issues the Court needed to address were whether the covenant in question was enforceable and whether it was sufficiently specific in identifying the land to be benefited. The enforceability of the covenant hinged on whether it was intended to run with the land and bind subsequent owners. The identification of the land to be benefited was crucial to determine if the covenant was valid and enforceable. Additionally, the Court had to consider the applicant's request for the removal of the covenant and whether VCAT was correct in varying the covenant instead of removing it entirely.

The Court found that the covenant was indeed enforceable and intended to run with the land, binding subsequent owners. However, the Court also determined that the covenant did not sufficiently identify the land to be benefited, rendering it invalid and unenforceable. Consequently, the Court granted the applicant leave to appeal and allowed the appeal. The Court ordered that a permit be issued permitting the removal of the covenant, as it was no longer enforceable due to the lack of specificity in identifying the land.