Legal Research
Cases
Conlan v Benton

Conlan v Benton

Case [2017] VSC 244 9 May 2017

Restrictive Covenant

Statutory Interpretation

Remedial Modification

Property Law

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROPERTY LIST

S CI 2016 02008

IN THE MATTER of the Property Law Act 1958, Section 84

AND IN THE MATTER of an application by MARGARET MARY CONLAN by her litigation guardian JOHN PATRICK CONLAN for the discharge or modification of the restrictive covenants contained in instruments of transfer Nos. 1014947 and 1233910 affecting land situate and known as 15-17 Woodland Street, Essendon being land more particularly described in Certificate of Title Volume 10044 Folio 442.

MARGARET MARY CONLAN by her litigation guardian JOHN PATRICK CONLAN	Plaintiff
v
MICHELLE BENTON and others (in accordance with the Schedule attached)	Defendants

---

JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	3 and 4 April 2017
DATE OF JUDGMENT:	9 May 2017
CASE MAY BE CITED AS:	Conlan v Benton & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 244

---

PROPERTY LAW – Restrictive covenant – Two covenants over land – Construction – Declaration that restriction to ‘one shop or shops with or without dwelling house attached’ does not preclude construction of one shop and twelve apartments – Alternate application to discharge or modify restrictions in covenants pursuant to the Property Law Act1958 (Vic), s 84 – Whether discharge or modification will not substantially injure the persons entitled to the benefit – Application refused – Applicable legal principles – Property Law Act1958, s 84(1)(c) & (2)(b).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Sowden	Conlan Cummings Lawyers
For the Defendants	Mr M Townsend	MPW Lawyers

TABLE OF CONTENTS

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

Summary of Conclusions................................................................................................................. 1

The Covenants.................................................................................................................................... 2

The Issues............................................................................................................................................ 4

The Evidence....................................................................................................................................... 5

The Experts’ Reports.......................................................................................................................... 5

The Location and situation of the Land and Neighbourhood................................................ 6

Proposed development................................................................................................................... 11

The Experts’ Opinions................................................................................................................ 11
The Lay Evidence........................................................................................................................ 17

Applicable Law................................................................................................................................. 21

The Construction of Restrictive covenants.............................................................................. 21
Discharge or Modification......................................................................................................... 21
Section 84(1)(c)................................................................................................................... 21

Submissions – In Summary........................................................................................................... 24

Declaration................................................................................................................................... 24
The plaintiff’s submissions............................................................................................... 24
The defendants’ submissions........................................................................................... 25

Section 84(1)(c) of the PLA......................................................................................................... 27
The plaintiff’s submissions............................................................................................... 27
The defendants’ submissions........................................................................................... 27

Analysis.............................................................................................................................................. 28

Construction of the covenants................................................................................................... 28
Discharge or Modification......................................................................................................... 37
Substantial Injury............................................................................................................... 37

Conclusion......................................................................................................................................... 41

HIS HONOUR:

Introduction

The plaintiff, Margaret Conlan, applies by further amended originating motion[1] to discharge or modify two covenants under s 84(1)(c) of the Property Law Act1958 (Vic) (‘the PLA’) or alternatively, for a declaration pursuant to s 84(2)(b) of the PLA that on their true construction, the restrictions in the covenants do not prohibit the development of a ground floor shop attached to a residential apartment complex.[2]
[1]Filed on 4 August 2016. Mrs Conlan is 95 years of age and currently resides in an aged care facility. She brings her proceeding by her litigation guardian, John Patrick Conlan one of her sons. Consent to act as litigation guardian was filed on 25 May 2016.
[2]The application as originally formulated included and application under s 84(1)(a) of the PLA. That was abandoned at the…

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 Conlan v Benton

Details

AGLC: Conlan v Benton [2017] VSC 244
Case: [2017] VSC 244
Decision Date: 9 May 2017

CaseChat Overview and Summary

The dispute in Conlan v Benton involved the construction of a commercial building over residential land, which raised questions about the interpretation of restrictive covenants and their potential modification. The parties, Conlan and Benton, were in contention over whether a covenant restricting the use of the land to a single shop or shops with or without a dwelling house attached allowed for the construction of a shop and twelve apartments. The matter was brought before the court to seek a declaration on the matter and an application to discharge or modify the covenants under the Property Law Act 1958 (Vic), section 84.

The legal issues the court needed to address were twofold. Firstly, the court had to interpret the restrictive covenants in question to determine whether the proposed construction of a shop and twelve apartments was permissible under the existing restrictions. Secondly, the court needed to decide whether the proposed discharge or modification of the covenants would substantially injure the persons entitled to the benefit of the covenants, as required by the Property Law Act 1958 (Vic), section 84(1)(c) and (2)(b).

The court found that the restrictive covenant did not preclude the construction of one shop and twelve apartments. The court considered the language of the covenant and found that it was not ambiguous and clearly allowed for the construction of a shop and apartments. The court also found that the proposed discharge or modification of the covenants would substantially injure the persons entitled to the benefit of the covenants. The court considered the impact of the proposed development on the neighbouring properties and found that it would result in a significant change to the character of the area, which would be detrimental to the benefit of the covenants. Therefore, the application to discharge or modify the covenants was refused.

The court's decision was based on the interpretation of the restrictive covenants and the application of the relevant provisions of the Property Law Act 1958 (Vic). The court found that the restrictive covenant did not preclude the construction of a shop and apartments, but that the proposed discharge or modification of the covenants would substantially injure the persons entitled to the benefit of the covenants. The court's decision highlights the importance of carefully considering the language of restrictive covenants and the potential impact of proposed developments on neighbouring properties.

Orders